The Obama administration’s legal team is split over whether it is permissible to assassinate the thousands of al-Qaeda-affiliated individuals in Yemen or Somalia, or whether lethal force must be reserved for self-defense against individuals known to be plotting against the United States.
The legal basis of targeting groups or individuals with drone strikes, cruise missiles, or commando raids outside official war zones is the crux of the disagreement between the State Department and the Pentagon. The use of these lethal methods is without objection in the administration when it comes to Afghanistan, and over the border into Pakistan.
Some have made the argument that it is perfectly legal under domestic and international law to target low-level foot soldiers of disparate terrorist groups in Yemen and Somalia if they are affiliated with groups that Congress has permitted the President to target in defense of the country. But that determination is dangerous when left only to the Executive branch without checks, balances, or oversight.
The effects of that sort of policy have been borne out in Afghanistan and Pakistan particularly. Commando raids of suspected terrorist homes, for example, occur at least 12-20 times per night in Afghanistan alone (those executed in Pakistan are kept secret). As senior special operations commanders have admitted, these raids target the wrong people 50 percent of the time, often end in civilian deaths, and result in thousands of detentions per year, many of whom are non-combatants. A recent study suggests these raids may create more enemies than they eliminate.
The drone program in Pakistan, which has also operated on the more permissive interpretation of the legal use of force now being considered for Yemen and Somalia, has produced similar results. Sometimes managing to kill the high-level operatives intended, estimates for civilians killed go as high as one militant for every 10 or 15 civilians, while over 160 children have been murdered by the strikes.
Expanding the Executive branch’s legal authority to kill anyone it deems an enemy anywhere in the world has the potential also to extend this grant to those who simply give rhetorical support to terrorist groups, even if that person is a US citizen. Furthermore, like the commando raids, drone programs have the potential to create more enemies than it eliminates, as was admitted by former Director of National Intelligence Dennis Blair.
Congress is currently considering, as part of a pending defense bill, a new authorization to use military force against al-Qaeda and its associates. One version proposed by the House Armed Forces Committee would establish the more expansive standard for military action, potentially making it easier for the administration to strike and kill anyone they decide, anywhere in the world.