Massimino Questions Legality of Obama's Targeted Killing Strategy

In response to a New York Times report detailing the Obama administration's targeted killing strategy, Human Rights First President and CEO Elisa Massimino asked President Obama to make clear that the United States will not target individuals solely on the basis of their membership in or association with particular groups, as a first step in re-evaluating the U.S. legal position. She also asked that the administration provide additional information to clarify the criteria for lethal targeting decisions, the process by which targeting decisions are made, and the mechanisms in place to provide accountability and remedy for violations of the law.

Today's New York Times article comes just weeks after John Brennan, the administration's chief counterterrorism advisor, delivered remarks on the targeted killings program. At the time, Human Rights First noted that the targeting killing strategy he detailed fails to meet the standard of America living its values.

"Both today's article and Mr. Brennan's remarks raise concerns that, in some instances, U.S. actions are being taken in violation of international law," Massimino wrote. "Moreover, although Mr. Brennan stated that as a matter of policy your Administration would not exercise the full measure of its legal authority, the New York Times article suggests that the CIA is nevertheless targeting individuals who may not be properly considered to be combatants and may not pose a threat to the United States. We are deeply concerned that Mr. Brennan's remarks may provide a template for other countries which, as he rightly recognized, will be less concerned with protecting innocent civilians."

Human Rights First does not categorically oppose targeted killing and does recognize that lethal force is lawful in armed conflict. However, it notes that remote targeting presents both opportunities and risks to compliance with the law of armed conflict (international humanitarian law) principles of distinction and proportionality. In her letter, Massimino stated that the organization does not agree with Brennan's

characterization of the legal authority to engage in targeted killing.

She noted, "First, we believe there are legitimate questions about whether the United States is in an armed conflict with Al Qaeda's 'associated forces' outside Afghanistan and Pakistan. Under international law, an armed conflict can only exist if such 'associated forces' have a level of organization that would allow them to assume their obligations under international humanitarian law and if there are ongoing hostilities of sufficient intensity and duration. Moreover, the 2001 Authorization for Use of Military Force is expressly limited to those who 'planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,' and is not directed to groups or nations that pose different threats. Second, even if the United States is in such an armed conflict, Mr. Brennan's claim that all members of 'al Qaeda, the Taliban and associated forces' are targetable with lethal force is a misstatement of the relevant international law."

Mr. Brennan suggested in his speech that, as a matter of policy, the U.S. government refrains from targeting all members of al Qaeda or associated forces. The New York Times article, however, quotes unnamed administration officials suggesting that all military-age males in a strike zone are presumed to be combatants. Massimino said that such a policy permits both the targeting of innocent civilians in violation of international law, and allows the administration to undercount the number of civilian casualties resulting from such strikes. In addition, she continued, the U.S. position -- maintaining a posture of expansive legal authority and claiming a more limited prudential policy on targeted killing -- sets a dangerous precedent for global security.

"By claiming that international law permits the United States to target any member of certain groups (including unnamed armed forces) anywhere in the world, the United States is inviting other nations to similarly misinterpret their targeting authority under international law. Having claimed such broad lethal targeting authority, the United States has effectively given permission to China, Russia, Iran, Pakistan or any other country to target individuals anywhere in the world who their security services might accuse of involvement in terrorist activities hostile to their state," Massimino warned. "For all these reasons, the United States' explanation of its legal targeting authority is extremely problematic."