07/19/2011 05:39 pm ET Updated Sep 18, 2011

The Assassination President?

If George W. Bush was the torture president, Barack Obama's pet human rights violation is extrajudicial killing. As early as May 2009, the UN's Special Rapporteur on unlawful execution chided the Obama administration. And Human Rights Watch worried in an important letter to Obama last December that the targeted killings conducted under his administration violated international human rights law. All this was before the May 2011 kill mission disposing of Osama bin Laden, and before the plan to assassinate Muammar Gaddafi that is one of the clearer aspects of NATO's largely mysterious aims in Libya. It was before the administration's sharp escalation in drone strikes, often deployed to eliminate suspected terrorist leaders: last month alone saw the killing, albeit unconfirmed, of Ilyas Kashmiri in Pakistan and the leaders of al-Shabab in Somalia.

Even American citizens are not immune. A May 2010 drone strike attempting to kill U.S.-born al Qaeda leader Anwar al-Awlaki struck a car in southern Yemen; officials promptly assured us that the two men killed were terrorists, anyway, and tried to whisk away a lawsuit filed by al-Awlaki's father. Is this what candidate Obama meant when he promised to end Bush's disgraceful record of extraordinary rendition, enhanced interrogation, military tribunal, and detention without trial? Who knew in 2008 that he would replace these practices with summary execution?

One can argue persuasively that execution, with or without trial, is an unacceptable violation of human rights. I happen to take that view. But I recognize that important questions must still be contemplated. When discussing torture, we often raise such questions with some variant of the time-bomb hypothetical: you have in your custody an individual who knows the location of a time bomb set to detonate in a crowded area in the next four hours; do you use torture to extract information that will save many lives? We can imagine a similar hypothetical on extrajudicial killing: you know the location of a person actively planning mass murder, but that location makes apprehending him alive impossible; is killing him more just than not killing him?

International law can be read as answering that hypothetical in the affirmative: targeted killing can be justified, even away from a zone of conflict, when other means are not available and when it will directly and immediately saves lives. What may be most unsettling about the Obama administration's targeted killings, then, is not the practice itself but the side-stepping of hard ethical and legal questions through creeping implementation by the executive branch. Any society valuing the rule of law must weigh such measures with great care, and yet they have been pursued under a fog of war manufactured by the public-relations smoke machines of two administrations.

This has happened despite the outlawing of assassination in standing executive orders from Presidents Ford, Carter, and Reagan. Even with these orders in place, of course, Reagan attacked Gaddafi's compound in 1986 and George H.W. Bush ordered bombings of Saddam Hussein's palace and bunker in the First Gulf War, cases that surely qualify as assassination attempts. But these also qualify as attempted tyrannicide -- which is assassination's most legitimate form -- and they occurred within a fairly clearly definable zone of conflict. What has changed since 9/11 is the convenient doctrine of the ubiquitous battlefield: combatants can be killed wherever they are found because the War on Terror defines the entire world as a domain of war.

We might expect that view from George W. Bush and see it as a natural consequence of a C-minus student's reading of the Book of Revelation. Obama has played us for fools in leading us to expect more from him. But his lawyerly pirouette around "hostilities" in Libya cuts both ways: if the U.S. government is not engaged in hostilities in Libya, then the plan to kill Gaddafi can only be defined as the attempted assassination of a head of state. And Pakistan and Yemen do not qualify as war zones at all: for all of their flaws, they are allied nations posing no immediate threat to America or its interests.

Combating terrorism almost certainly requires a re-examination of laws and conventions on targeted killing. Just war theory tends to frown on blanket permission to assassinate enemy officials because, as Michael Walzer has argued, modern states are large organizations: even in a despotic regime, not all officials are directly responsible for all actions of the state. The same cannot be said for terrorist organizations, whose leaders are necessarily criminal. Even if we reject the doctrine of the ubiquitous battlefield, as we should, the operation of terrorist organizations across national borders does make it a challenge to define zones of conflict. But who qualifies as a person prominent enough, and dangerous enough, to merit immediate execution, rather than capture and trial? What qualifies as a locale where capture is not practicable? At what point is it legitimate for the government to jettison its own citizens' rights to due process?

Drone attacks are currently pursued without any transparent policy or set of legal tests in place for determining legitimate targets, for precluding the possibility of capture, and for protecting innocent bystanders from harm. Important legal questions have been foreclosed by a discourse of the necessity of extrajudicial killing to an open-ended global armed conflict; such claims of necessity, as Milton perceived, are the tyrant's plea.

The Obama administration's record of extrajudicial killing is not as bad as his predecessor's record on torture. It's worse. A recent study exposes as pure fiction the claim of the administration's chief counterterrorism advisor, John Brennan, that US drone strikes in Pakistan have not caused a single collateral death. The best information available suggests that 32 percent of those killed in drone strikes are innocent civilians, with some suggestions that the actual figure might be much higher, and this says nothing of the human hardship caused by the displacement of individuals who find themselves in harm's way: by one estimate, 40, 000 people left the Yemeni province of Abyan last month as a direct result of escalated drone attacks. As the number of drone sorties climbs to the thousands and tens of thousands, so too will the number of innocent casualties of a practice already dubious for its killing of suspected criminals without trial.

The above is cross-posted from the website of Dissent Magazine.