There are reasons to be relieved by — and concerned about — the reports that the Obama administration is preparing a "playbook" of rules for targeted killings of suspected terrorists abroad. If drone-strike assassinations — which have already killed more than 2,000 people in Pakistan and elsewhere — are to remain an important element of counter-terrorism strategy, it’s preferable that there be formal criteria to guide the program. At the same time, the codification of rules further institutionalizes a policy that is morally problematic and may ultimately be self-defeating.
According to a report in the Washington Post, the new counter-terrorism manual will require White House approval of lethal strikes and the involvement of a variety of agencies — including the State Department — in adding names to a "kill list." Special procedures would be adopted for strikes targeting U.S. citizens abroad. But the Post said there would be an exemption from strict rules for drone strikes in Pakistan, where some attacks would continue to be launched not to target particular terrorists but because of suspicious activity such as the movement of stockpiles of weapons. Such a "carve-out" for Pakistan would render the regulations largely toothless.
The administration insists that targeted killings are legal under the Authorization for Use of Military Force passed by Congress after 9/11, which it interprets to include action against not only al-Qaida but "associated forces." And it maintains that holding U.S. citizenship doesn’t confer any immunity on a terrorist who is planning an attack on Americans and cannot be captured. That apparently was the rationale for the drone strike in Yemen that killed Anwar Awlaki, the New Mexico-born propagandist for al-Qaida in the Arabian Peninsula.
We agree that the U.S. shouldn’t have to sit on its hands while terrorists plan imminent attacks on Americans. But using drones to kill terrorists anywhere in the world because they might attack Americans in the future is a dramatic departure from traditional warfare. And while drone attacks may be more surgical than other sorts of airstrikes, they do kill innocent bystanders. (Last week the head of a UN human-rights panel said he would conduct an investigation of the "exponential rise" in drone strikes by the U.S. and others.) Complaints about civilian casualties from drone attacks in Pakistan have complicated U.S. relations with that country.
The administration hasn’t been forthcoming enough about the legal and practical judgments underlying targeted killings. John Brennan, Obama’s senior counter-terrorism adviser and his nominee to head the CIA, has said that the U.S. targets only individuals who pose a "significant threat to U.S. interests," such as leaders of al-Qaida or associated groups, operatives who are planning an attack, or someone with "unique operational skills that are being leveraged in a planned attack."
In discussing the criteria for targeting a U.S. citizen, Attorney General Eric H. Holder Jr. has said the target must present an "imminent threat of violent attack against the United States." But he defined "imminent" in troublingly expansive terms: A target could pose an "imminent" threat if killing him would head off "future disastrous attacks." Finally, the administration has refused to make public a Justice Department memo providing the legal rationale for the attack on Awlaki.
Some civil libertarians have demanded that the government be required to seek a court order for targeted killings, at least of U.S. citizens. But neither the administration nor Congress has expressed any interest in involving the courts in the operation of the program. When Awlaki’s family went to court to try to remove his name from a "kill list," a federal judge dismissed the complaint, holding that whether Awlaki was properly targeted for killing was a "political question," not a matter for the judiciary. Nine months later, he was killed.
In the coming weeks, the Senate Intelligence Committee will have an opportunity to demand answers about targeted killings when it holds hearings on Brennan’s nomination to head the CIA. He should be prepared to share the contents of the proposed "playbook" and the legal authorities on which it rests. Decisions about targeted killings may rely on classified information, but the process by which such fateful decisions are made should not be a secret.