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Justice Stevens and targeted killings

previous post contained State Department Legal Adviser Harold Koh’s Address before the American Society of International Law last week. As the post demonstrated, one of the areas that Koh discussed was the legality of targeted killings. Koh noted:

In U.S. operations against al Qaeda and its associated forces– including lethal operations conducted with the use of unmanned aerial vehicles– great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
Recently, a number of legal objections have been raised against U.S. targeting practices. While today is obviously not the occasion for a detailed legal opinion responding to each of these objections, let me briefly address four:

First, some have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.
Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

Over at IntLawGrrls, Diane Marie Amann reports on Justice Stevens’s observations on targeting killings. She begins with the this quote from Koh’s Address:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

Amann continues:

Upon hearing these words, my mind jumped at once to my 2005 interview of U.S. Supreme Court Justice John Paul Stevens (above right), for whom I had the privilege of clerking and about whom I am writing a jurisprudential biography. (photo credit) Stevens served as a Navy codebreaker at Pearl Harbor from 1942-1945, and earned a Bronze Star for that service. The relevant passage from my 2006 article entitled John Paul Stevens, Human Rights Judge described Stevens’ thoughts about perhaps the most famous targeted killing of World War II:

One event days before Stevens’s twenty-third birthday would stay with him for the rest of his life. The architect of the Pearl Harbor attack was Admiral Isoroku Yamamoto, who had learned English from a missionary and become a Babe Ruth fan while studying at Harvard in the 1920s. On April 14, 1943, Americans discovered that Yamamoto [right] was about to travel to the front. Unbeknownst to the Japanese, Stevens explained in an interview more than sixty years later, “We had broken the code.” On Roosevelt’s orders, U.S. pilots downed Yamamoto’s plane over a Solomon Islands jungle on April 18, Easter Sunday. “I was on duty on the day they brought the plane down,” Stevens said, “The message was, ‘We bagged one eagle and two sparrows,’ indicating success in the mission.” The kill buoyed the spirits of many, who knew that getting Yamamoto would, as Stevens put it, “have a tremendous strategic advantage.”

Stevens’ own thoughts were more complex:

But the incident troubled the young officer. “I remember thinking that the planners must have engaged in a lot of deliberation before deciding to go along with the plan,” Stevens said. “I have read a number of books on it since and discovered that was not the case. They were concerned that targeting him would reveal that they had broken the code.” Accounts of the killing indicate that U.S. Admiral Chester A. Nimitz and others—in communications laced with foxhunting terms—debated only the tactical benefits and costs. “But they had no humanitarian concerns at all of the kind that troubled me,” Stevens said. That fact “kind of surprised me,” he continued, particularly given that Yamamoto “had spent time in the United States and had friendships among high-ranking American officers.”

Stevens reaffirmed this sensibility in a just-published New Yorker interview. There author Jeffrey Toobin tracked the Yamamoto account in my 2006 article (without, alas, citation to same). Implicitly linking the Yamamoto incident to his later discussion of Stevens’ post-9/11 jurisprudence, Toobin contributed this insight:

The morality of military action became a lifelong preoccupation.

It’s also worth noting that Stevens’ concerns respecting that targeted killing had a profound effect on his capital punishment jurisprudence. The passage in my 2006 article thus continued:

Appearing before the Chicago Bar Association decades later, Stevens alluded to the event without naming the target. The Justice told his audience that the experience had sown doubts in his mind about another instance in which the state takes the life of a named individual; that is, capital punishment. Recalling that talk, Stevens affirmed that the Yamamoto incident led him to conclude that “[t]he targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic. . . . In my mind, there is a difference between statistics and sitting on a jury and deciding whether to kill a single person.”

As pointed out in note 178 of my article, Stevens revealed in a 1996 speech that, notwithstanding these doubts, at the time of his 1975 confirmation hearings, he did not himself know how he would vote on capital punishment. The Justice since has told me that in 1975 no Senator asked him his views, neither publicly nor privately. In 1976, he voted in Gregg and related cases to reinstate the death penalty. But as posted, in 2008, Stevens made public his conclusion that the death penalty, in all its applications, violates the 8th Amendment to the U.S. Constitution.
Stevens’ linkage of targeted killing amid armed conflict with the targeting for execution of a convicted murderer provokes further thoughts:
► As my 2006 article observed,

That superior officers expressed no qualms in 1943 about targeting Yamamoto suggests earlier sources for Stevens’s “humanitarian” unease.

My 2010 article John Paul Stevens and Equally Impartial Government (now available in pdf here, and soon to be in print in the UC Davis Law Review) sets forth a story of Stevens’s family that might have encouraged careful thought about the power of the state.
► It bears particular mention that although Stevens harbored what he called “humanitarian concerns” years before he would decide to enter law school, his were, fundamentally, the concerns of a lawyer. They signaled a visceral sense that the process of law, no less than law’s substance, places valuable constraints on state power.
The quote [from  Koh's Address] at the very top of this post stands in conflict with that sense of justice.

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3 Comments

  • Jerry Mayer says:

    Interesting discussion, Tony. I guess I come down on the side of those who don’t worry about targeting a specific general or leader in war time. If, by killing one, you can shorten the war, that strikes me as legal and moral. That is, of course, assuming that the war itself is legal/moral, and if it is not, you have bigger problems than this. I would distinguish that from targeting civilian populations, which, even if it would shorten the war, should not be legal. War is often about targeting specific individuals. If a soldier sees a truckload of enemy soldiers coming near his position, he might logically decide to shoot for the driver. He certainly is specifically targeting an individual. Why would it be different if he knew his name, as in the Yamamoto case?

  • Anthony Clark Arend says:

    Jerry, Thanks so much for the comments. I think international law clearly allows for the targeting of a general, admiral, or other military leader. They are combatants. It is a little more tricky when you have a civilian leader. But I am not sure there is a clear answer. During the first Gulf War, would George H.W. Bush have been a legitimate target? He was the commander-in-chief, yet he was not on a “traditional battlefield?” What if he went to Iraq to oversee the conflict?

    • Jason Wasser says:

      Hi, Professor. I too was struck by Koh’s comments, though for a different reason: the fact that Yamamoto was not on a battlefield when he was killed. When the US is at war with another state, can it attack that state’s armed forces wherever they are — in this case, the Solomon Islands — no matter if hostilities are being waged in that particular territory? (I understand in this situation, armed conflict had already broken out in the islands.) Once two parties are engaged in an armed conflict, can they attack each other’s combatants anywhere (in accordance with necessity, distinction, and proportionality)? Thanks!

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.