Experts debate legalities of covert warfare

By SARAH CHACKO
Medill News Service

WASHINGTON — Is the targeted killing of a terrorist murder or the lawful response to an enemy combatant? What if the terrorist wasn’t “on the battlefield” in Afghanistan? What if the terrorist was an American citizen?

These questions are being debated by courts and the public as the case of Anwar al-Awlaki’s inclusion on a list of people to be killed by American agents without trial is challenged. Al-Awlaki, a native of New Mexico, is a prominent advocate of violent jihad against the U.S.

Complete video recapsGary Solis, a Georgetown University law professor and author of “The Law of Armed Conflict: International Humanitarian Law in War,” and Benjamin Wittes, senior fellow in governance studies at the Brookings Institution and author of “Law and the Long War: The Future of Justice in the Age of Terror,” discussed the topic at a recent panel hosted by the Medill National Security Journalism Initiative.

When it comes to targeting U.S. citizens, the justification lies on their classification – civilian or combatant, Solis said. Civilians are protected under the law of war so they cannot be purposely targeted, he said.

But if a civilian participates in hostilities, he forfeits that protection and may be lawfully targeted and killed, Solis said.  “So the question is what constitutes taking a direct part in hostilities?” →
American officials link al-Awlaki, a native of New Mexico and a prominent advocate of violent jihad against the U.S., with the 9/11 attackers, the would-be Christmas Day bomber and the man accused of trying to detonate a bomb in Times Square. But Solis said ties do not seem strong enough.

There also is the issue of defining the boundaries of an armed conflict, Wittes said.

“Because if you are outside of the armed conflict, there is a word for the state ordering somebody’s death and then sending a missile into his car or whatever. And the word is murder,” Wittes said. “And actually legally, that’s what it is.

“If you are not in an armed conflict, … the consequences of her view is that the president is a serial killer. You have literally hundreds and hundreds of acts of ordered killing of people that is not protected, not authorized by the law of armed conflict.”

The final word on this issue may not come from the courts. Both Wittes and Solis agreed that they would not want the courts making a decision – Solis said the judiciary should not decide the rules of military engagement, and Wittes said the diffusion of responsibility on targeting decisions would only bring the judiciary into disrepute.

But absent some change in Supreme Court precedent, this area of law will continue to develop inside the executive branch in secret, Wittes said.

“I think the likelihood that courts will stay out of this stuff, at least in the short term, is very substantial,” he said. “And so we have to imagine that this is going to develop as a matter of incremental and often secret executive branch internal guidance overseen by Congressional guidance.”