Outside of the fighting in Iraq, Afghanistan, and now possibly Syria (where Congress has arguably never even declared war), the "war on terror" is not a war at all. It is instead a conflict with an ever-expanding list of targets, no defined geographical boundaries, and no foreseeable endpoint. It is a campaign against any conceivable potential U.S. enemy, fought in fits and starts in many countries on several continents. It involves ongoing covert operations largely hidden from everyone except its targets. As an undertaking, it lacks the regular, sustained conflict between armies that characterizes war in the legal sense. Such operations fit another category far better: assassination, illegal at least since President Jimmy Carter's Executive Order 12036, which stated, "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."
Nor is the Middle East the only region where the United States is using targeted killing outside a shooting war. The U.S. military also deploys drones in parts of Africa. In fact, President Obama's nominee to head U.S. Africa Command, Marine Lieutenant General Thomas Waldhauser, recently told Senator Lindsay Graham that he thinks he should be free to order drone killings on his own authority.
So much for war and "war." What about self-defense? At every stage of the "war on terror," Washington has claimed self-defense. That was the explanation for rounding up hundreds of Muslims living in the U.S. immediately after the attacks of 9/11, torturing some of them, and holding them incommunicado for months in a Brooklyn, New York, jail. It was the excuse offered for beginning torture programs in CIA "black sites" and at Guantà ¡namo. It was the reason the U.S. gave for invading Afghanistan, and later for invading Iraq -- before, as Bush administration representatives and the president himself kept saying, "the smoking gun" of Saddam Hussein's supposed weapons of mass destruction turned into "a mushroom cloud" over, presumably, some American city.
And self-defense has been the Justice Department's rationale for targeted killing as well. In a November 2011 paper prepared by that department for the White House, its author (identity unknown) outlined the necessary conditions to make a targeted killing legal:
"(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;
(2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and
(3) the operation would be conducted in a manner consistent with applicable law of war principles."
That would seem to rule out most U.S. targeted killings. Few of their targets were people on the verge of a violent attack on the United States or U.S. soldiers in the field. Ah, but in the through-the-looking-glass logic of the Obama Justice Department, "imminent" turns out not to mean "imminent" in the sense that something is about to happen. As that document explains: "The condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."
It turns out that the threat from any "operational leader" is always imminent, because "with respect to al-Qaeda leaders who are continually planning attacks, the United States is likely to have only a limited window of opportunity within which to defend Americans." In other words, once a person has been identified as an al-Qaeda or allied group "leader," he is by definition "continually planning attacks," always represents an imminent danger, and so is a legitimate target. Q.E.D.
In fact, few enough of these targeted killings, including the signature ones can be defended as instances of self-defense. We should call them what they really are: extrajudicial executions.
The U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has agreed with this view. In his 2013 report to the General Assembly, Christof Heyns noted that international human rights law guarantees a right to life. This right is enshrined in the 1948 Universal Declaration of Human Rights and given legal force in, among other treaties, the International Covenant on Civil and Political Rights, to which the United States is a party. There certainly are legal limits to the right to life, including -- in countries that have the death penalty -- the state's right to execute a person after a legitimate trial. To execute someone without a trial, however, is an "extrajudicial killing" and a human rights crime.
Obama "Comes Clean"
By the middle of President Obama's second term in office, criticism of this extrajudicial killing program, and especially of the civilian deaths involved, had mushroomed. So, in May 2013, at least 11 years after the program was launched, the president announced a shift in drone strategy, telling an audience at the National Defense University that the U.S. would engage in "targeted killings" of al-Qaeda militants only when there was a "near-certainty" that no civilians would be injured. He added that he was planning to make the drone program more transparent than it had been and to transfer most of its operations from the CIA to the Pentagon.
In the two years since, little of this has happened. Although Obama has continued the job of personally approving drone targets, the CIA still runs much of the program.
On July 1st, he did finally take a step towards providing greater transparency. The Office of the Director of National Intelligence issued a report stating that, outside of more conventional war zones like those in Syria, Afghanistan, and Iraq, U.S. airstrikes have killed "64 to 116 civilian bystanders and about 2,500 members of terrorist groups." These estimates are, in fact, quite a bit lower than those supplied by the various groups that track such killings. Note as well that, legally speaking, not only the "collateral damage" victims, but all those that Americans identified as "members of terrorist groups" died via illegal, extrajudicial executions.
The document fulfills one of the requirements of a newly issued executive order, which, among other things, requires the government to release a report by May 1st of each year containing "information about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities [i.e., outside genuine war zones]" for the previous calendar year.
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