The Legal Fog Between War and Peace
FOR all the heated back and forth over the acceleration of America’s targeted killings campaign, which took out Abu Yahya al-Libi, the No. 2 man in Al Qaeda, last week, the program’s lawfulness turns on one simple question: Are we at war? Try to answer that question, however, and the simplicity falls away. In the skies over Afghanistan and Pakistan, the basic distinction between war and peace — the foundation of laws of armed conflict that have been evolving for three centuries — is in collapse.
Under current law, the legal analysis of targeted killings is straightforward: If we are at war, an American government may target enemy combatants and civilians directly participating in hostilities without running afoul of either domestic or international law. Such killings are not assassinations because they are lawful. It was lawful when the Continental Army singled out British officers for fire, and when the United States Navy, on the order of Navy Secretary Frank Knox, targeted and killed Adm. Isoroku Yamamoto, Japan’s premier naval commander, over the Pacific in World War II.
If we are engaged in a peacetime law enforcement operation, by contrast, targeted killings are almost certainly illegal under both domestic and international law. The criminal justice system allows government officials to target and kill only when doing so is required for self-defense or for the defense of others, and when there is no reasonable opportunity to capture the person instead. End of story.
Those legal categories, however, no longer fit the events we are experiencing. The war paradigm now seems an indefinite grant of dangerously vast authority to the president. The law enforcement paradigm, by contrast, threatens to tie the hands of the country in an era of unconventional weapons and potential nuclear proliferation.
In fact, our arguments about targeted killings are playing out at a historic juncture in which the categories of war and peace, which the modern world thought it had carefully separated, are collapsing into each other.