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One country may NOT target and kill the leader of another country; this is a basic precept of agreed-upon international law. While this prohibition may not have prevented the targeted killing of Osama Bin Laden last week, it does raise questions about NATO’s Saturday’s attack on Libyan President Moammar Gadhafi’s compound that killed one of his sons and several grandchildren under age twelve. Join Kojo for a conversation about targeted killing and the Rules of War.
- Ruth Wedgwood Edward B. Burling Professor of International Law and Diplomacy and Director of International Law and Organization, Johns Hopkins School of Advanced International Studies (SAIS)
- David Cole Professor of Constitutional Law and Criminal Justice at Georgetown Law.
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, how America can maintain its competitive grip on the global economy. We talk with author Adam Segal. But first, it's a hypothetical situation that the Attorney General of the United States of America said would never occur, the U.S. capturing Osama Bin Laden, reading him Miranda rights and trying him in court.
MR. KOJO NNAMDIAnd true to Eric Holder's prediction, a team of Navy SEALs killed bin Laden this weekend before the complications of trying him ever became an issue. But did the United States act within the law when American forces penetrated Pakistan to kill bin Laden? And how did the legal issues at work in this operation compare to those in the recent NATO airstrike that resulted in the death of Moammar Gadhafi's son and grandchildren? A strike that some interpreted as the attempted murder of another country's head of state.
MR. KOJO NNAMDIJoining us to sort through the thorny legal issues that come about in the fog of war is Ruth Wedgwood. She joins us in studio. She's the Edward B. Burling Professor of International Law and Diplomacy and the director of international law and organization at the Johns Hopkins School of Advanced International Studies. Ruth Wedgwood, good to see you again.
PROFESSOR RUTH WEDGWOODAnd to see you.
NNAMDIJoining us by telephone is David Cole. He's a professor of constitutional law and criminal justice at Georgetown University Law Center. David Cole, thank you for joining us.
PROFESSOR DAVID COLEThanks for having me.
NNAMDIBefore President Obama spoke on Sunday to announce that U.S. Navy SEALs had killed Osama bin Laden, most of the talk was about a different strike in Northern Africa, a NATO airstrike that left dead one of the sons and a few of the grandchildren of Libya's Moammar Gadhafi. Libyan officials have accused NATO of attempting to assassinate a head of state. Starting with you, Ruth Wedgwood, what are the legal and the moral issues at work here? Are they in conflict? Should we separate the legal from the moral?
WEDGWOODWell, there are facts that are irrelevant and legal standards that are relevant. Generally, in a war, you are entitled to attack your adversaries' command and control. In some circumstances, there has been a kind of accommodation for heads of state so that there would be somebody to end the war, to negotiate the end of the war. But in World War II, for example, we shot down an airplane in which a senior Japanese admiral, Yamamoto was flying, because he was a significantly high decision-maker in the chain of command.
WEDGWOODSo in so far as a head of state is the head of the chain of command in the military sense, then under law of war, in a war, he's a legitimate target.
NNAMDIDavid Cole, what is the legal framework that applies to targeted killings under international law?
COLEWell, it's essentially the question that -- the critical questions are what kind of war are you in? Is it a traditional, nation-to-nation conflict or is it a non-traditional conflict between a nation and a non-state factor? But in both of those kinds of conflicts, you're permitted to kill those who fighting against you for the other side and you're permitted to kill them simply because they're fighting for the other side.
COLEYou don't have to wait until they're shooting at you in order to shoot at them. You can kill them while they're sleeping, et cetera. The principal constraints are you can't kill them if they surrender so if they put up the white flag, you can't go ahead and shoot. And you also can't kill them if they are "Hors de combat", out of combat, not able to engage in combat because they're injured or sick in some way that does not pose any threat to you. In that situation, you're required to capture and not kill.
COLEBut in non-international armed conflict, as is the case with respect to the fight with al-Qaida, there are difficult questions about who is the enemy, in what situations. What should the presumptions be when you apply this outside of a battlefield context to say, you know, an urban area in Pakistan, et cetera, et cetera that are very much a matter of dispute among experts on the laws of war.
NNAMDIIf you'd like to join this conversation what concerns do you have about the legality of the targeted killings that are part of America's national security strategy? You can call us at 800-433-8850. Send us a tweet at kojoshow. Send us an e-mail to email@example.com or go to our website kojoshow.org and join the conversation there. Ruth Wedgwood it is my understanding that President Ford in the wake of several scandals at the CIA signed an executive order that prohibited U.S. government employees from conspiring or engaging in political assassinations. What's your opinion of that order and how it applies to the challenges we face globally right now?
WEDGWOODYeah, Gerry Ford issued this very famous executive order, EO 12333...
NNAMDIWas that for the (word?) right?
WEDGWOOD...12333, yes indeed. Senator Church's son married me actually so I feel some connection there.
NNAMDIFormer Senator Frank Church was the head of the Committee on Intelligence.
WEDGWOODBut the concern then was fear that in the course of some of the ideological battles in Latin America and middle America and in Central America that there might have been or could be killings that were purely based on the ideology of an individual, a very radical trade union organizer or a Communist political leader. And the intention, as I have read it, of 12333 is to say you can't target people based upon philosophical or political views. You have to confine yourself as the law of war would require to whether they are, in fact, kinetic combatants.
NNAMDISo those 19 attempts to assassinate Fidel Castro would definitely have fallen under this order had it been in existence?
WEDGWOODI'm going to leave that to David and his cigar, but, well, in so far as Fidel might have been planning to attack us, inshallah. But in general, in 19th century history and even in this century, killing heads of state is seen as not a desirable thing because you want someone to negotiate with. But if the head of state is the commander-in-chief, then it raises difficulties.
NNAMDIDavid, your interpretation of executive order 11905, later 12333?
COLEWell, I think that -- I think it was largely designed to govern in non-war time and I think the Justice Department's view is that when you're in an ongoing armed conflict, it's not an assassination to kill somebody who is part of the fighting force that you're arrayed against. That's just not -- we don't think of that as assassination. We think of that as killing during wartime. It's regrettable, but it is part of war. And so I think that the principal goal there was to say, you know, when we're not engaged in war, the mere fact that a head of state is sympathetic to the Communists should not justify us in seeking to eliminate him. But when we are in a war, the fact that somebody is in the chain of command and directing attacks against us, does make them a legitimate target for our military operations.
NNAMDIAllow me to go to the telephone. Here is Amadu in Silver Spring, Md. Amadu you're on the air. Go ahead, please.
AMADUYes, hi, Kojo. Thank you for accepting my call. You know, I am very grateful for being on your program today. You know I am a native of Liberia. I experienced a lot when it comes to war, especially civil war. Now with the prevailing situation in Libya I don't know. I found out that the government -- the president there and some of his family members, like his son and grandchildren were bombed by international peacekeepers. So I don't know whether that was right. And as we all know, international peacekeeping is supposed to be training the delivering forces, supposed to be there to defy them from harming innocent civilians and I don't know if that was right. I mean that...
NNAMDIWell, let me see what Ruth Wedgwood has to say about whether that falls under the command and control argument. I suspect that people who opposed it were especially concerned about the fact that there were children there.
WEDGWOODWell, certainly, in any kind of martial engagement you have to be worried about innocent civilians, collateral damage, human beings who might be too nearby the target. And in the case of a kid or a grandkid, if they were indeed -- certainly the grandchildren were non-combatant. I don't know enough about the role of the son.
WEDGWOODBut there's an additional complication in this case because, at least the White House has purported to be acting under the U.N. Security Council Resolution which limits the involvement to the protection of civilian populations. And although Gadhafi is a bloodthirsty son-of-a-gun and carnivorous almost by nature, still the nexus between the bombing attack and a particular instance of protecting civilians is harder to draw. I do think, however, that this event shows we cannot leave him in power because this is exactly the prelude to the Lockerbie bombing when we bombed his headquarters in '86.
COLEWell, I think Ruth's right, that it's -- the real question here is that we're supposed to be engaged in a very limited engagement. We're not engaged in a full-out war with Libya. And I think, you know, if the rebels had killed Gadhafi, that would have been an appropriate act of war.
NNAMDIThat would be civil war, yeah.
COLEYeah, it's -- but for us -- so that the issue is not so much can you do it during wartime, but given the constraints upon our involvement, did we cross the line? And I think there's a pretty strong argument that we did. I also think politically and strategically it's not clear that it was a wise move.
WEDGWOODOn the other hand, if Gadhafi's planning to use chemical weapons against civilians, that would seem to qualify him as a legitimate object of concern.
NNAMDIBecause the mission is to protect civilians, but there has not been any report so far, or maybe there has been and I missed it, about his intention to use...
NNAMDI...chemical weapons against civilians. But Amadu thank you very much for your call. You, too, can call us at 800-433-8850. We're talking with David Cole. He's a professor of constitutional law and criminal justice at Georgetown University Law Center. He joins us by telephone. Ruth Wedgwood joins us in studio. She is a professor of international law and diplomacy and the director of international law and organization at the Johns Hopkins School of Advanced International Studies.
NNAMDIEric Holder, the Attorney General of the United States pushed back in a Congressional Hearing last year when he was asked what kinds of legal rights the United States would extend to Osama bin Laden if he were to be captured? Let's take a listen to what Holder said.
ATTORNEY GENERAL ERIC HOLDERYou're talking about a hypothetical that will never occur. The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom.
NNAMDIAs it turned out ,it was a situation where the United States may have saved itself a lot of headaches because there was a firefight and apparently Osama bin Laden, having said before that he would not be taken alive, followed through on that. But I guess this means, David Cole, that the U.S. does not have to worry about Osama bin Laden being in a court system. What would be the implications of that?
COLEWell, the implications of that would be similar to the implications that we've seen with respect to Khalid Sheikh Mohammed, the mastermind of 9/11 only...
COLEMultiplied tenfold, right. But, you know, that said, had we gone in with the notion that we're going to kill him no matter what, that actually would have been illegal. Because, again, if had he surrendered, we would not be permitted to kill him. But I think if you read the reporting from John Brennan and other officials in the executive branch who describe the particular design for this attack, the notion was to kill or capture.
COLEThey had no allusions that he was very, very unlikely to surrender and so the very likely result would be that he would be killed. But were you to go in and say, take no prisoners, kill no matter what, that would be a war crime. But I don't understand them to have -- to have done that or there be any evidence that they've done that. I think Holder's language is a little impolitic there.
MS. RUTH WEDGWOODWell, as a teaching hypothetical, say you had captured O.B.L. and you were then bringing him back to the US of A, once again, to have the never-ending, ever fertile debate of Foley Square versus Guantanamo military tribunals. You can imagine the dilemma because -- take the case of Koedatich, the -- excuse me, Milosevic, the devil-if-I-may of the Yugoslav war. He used the war crime platform in his trial to arouse the Serbs, to propagate the most radical kind of racial and nationalist propaganda and then never ended up finishing the trial.
MS. RUTH WEDGWOODSo I do think that for people who think that Guantanamo versus Foley Square is an easy issue, they should imagine what it would've been like to give Osama bin Laden a platform with an American defense lawyer in the middle of New York with a 150,000 trials occurring daily or week -- I'm sorry, yearly in the criminal court next door, Bob Morgenthau's old office, now, Cyrus Vance's office, and try to preserve security for O.B.L. This -- and for the jurors who go home to Brooklyn every night, this would've been quite a to-do.
NNAMDIGot to take a short break. We'll be back with this conversation about targeted assassinations and the legal ground on which they stand or not. 800-433-8850 is the number to call or go to our website, kojoshow.org, join the conversation there. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation with Ruth Wedgwood. She's the Edward B. Burling professor of international law and diplomacy and the director of International Law and Organization at the Johns Hopkins School of Advanced International Studies. David Cole is a professor of constitutional law and criminal justice at Georgetown University. In some ways, one can argue that targeting killings have become a major component of the US's national security strategy for the last several years.
NNAMDIThe United States has launched a barrage of drone attacks in the mountainous region of Pakistan with the aim of killing terrorists who are hiding there. What concerns do you have about the legality of those drone strikes? First you, David Cole.
MR. DAVID COLEWell, the first concern I have is that we don't have a publicly expressed statement of what our policy and practice is with respect to these targeted killings. I don't think -- the position of targeted killings are never permissible, but I also don't take the position that they're always permissible. And I think it's critically important when you give the executive branch the power to kill somebody by pushing a button without a trial, without a hearing in a non-battlefield situation, that there be very, very good procedures in place to ensure that we're not making mistakes, that we're not killing the wrong people and that we're not doing unnecessary damage -- collateral damage.
MR. DAVID COLEAnd thus far, we have refused to set forth what our policies and practices are. Harold Koh, who's the state department legal advisor, talked about it for about two paragraphs in a speech to a society of American -- of international law meeting a couple years ago. But that's it. And I think that, you know, they're extremely controversial in Pakistan that we have -- we know there's a U.S. citizen on the list. Does the president deserve the power to kill you as citizens without trial? And again, it may be legal, but we don't know how the administration is doing it, what criteria it's using.
MR. DAVID COLEAnd I think in a democracy, that kind of information ought to be public so that we, as citizens, can say, yes, this is appropriate and right and legal, or, no, this is inappropriate and wrong and illegal. And thus far, it's been trapped in secrecy. And I think that both challenges the values of a democratic society and undermines the validity and legitimacy of what we're doing and plays into the kind of criticism that has made them so divisive and unpopular in Pakistan.
NNAMDIThose are the foreign policy implications. Ruth Wedgwood, as to the legality?
WEDGWOODWell, I think every time we hit a civilian, a child, a shepherd, it hurts us, obviously. But here I have to differ with David. He wouldn't propose that we have published in the federal register, the plan to knock out the building in which bin Laden was found a couple days ago. And the actual targeting criteria, if they are fully published, could allow the adversary to engineer around, to know what particles to have and not have when you're on the target list.
WEDGWOODI mean, the phrase is vulgar, targeting killing. It sounds like the old word, assassination. But in its appropriate use, it's to take out somebody who you know to be a combatant, where you can't put somebody in on the ground because of the sovereignty concerns of the country in question or because the terrain is just too dangerous. And it should have the exquisitely careful checks and balances that all targeting decisions should have. We don't want another Chinese Embassy event ever in our lives as we had in Belgrade during the Kosovo war.
WEDGWOODBut it's also the case that a lot of these opportunities are femoral. They're instantaneous. You can't bring a lawyer from Georgetown or Johns Hopkins into the loop. It's got to be done in nanoseconds. And that's where the difficulty arises. You really need people who are well trained. You shouldn't be targeting everybody tall in Afghanistan, just to capture bin Laden. It's got to be something more discrete than that. But there are errors in every war.
WEDGWOODIn Kosovo, we hit a train on a bridge. We’ve hit a convoy of refugees who are fleeing from Milosovic. I'm afraid the tragedy of war is that humanly, costly errors happen.
NNAMDIHere is Gill in Bethesda, Md. Gill, you're on the air. Go ahead, please.
GILLThank you, Kojo. My question is actually a brief one. (word?) this individual you're talking about are people who never cared for any human life and they ordered the massacre of so many people, you know. Why do we have to be concerned about their lives?
NNAMDIWell, Gill, those are some of the people who we have -- those are some of the people who we know and have read about. My concern, frankly, David Cole, is those people who are for average member of the public, completely anonymous.
COLEWell, that's right. And I think, you know, the -- basically, the fact that the enemy is willing to violate all principles of human dignity and the rule of law doesn't justify our doing so. As John McCain said when it came to torture -- and the issue of torture under the Bush administration. It's not about who they are, it's about who we are. We have historically sought to maintain fealty to the laws of war, even when our enemy is not so obliged. So -- but in addition, this is an issue where some of the people you end up killing are, in fact, not people who have violated any principle of the laws of war and has not even engaged in the fight, but are innocent victims
COLEAnd it seems to me that it would not be -- I don't foresee any real problem with setting forth the legal architecture -- of course, we're not going to give advanced notice to Osama bin Laden that we're sending someone over to kill him. But the legal architecture that says we will only kill combatants, we will only kill them in situations outside the battlefield where we can't capture them.
COLEWe have a process of review to ensure -- and this is what the process of review is, to ensure that mistakes are, you know, much less likely. We're not going to eliminate mistakes. But again, we -- right now, just have to take it on trust that our president can kill any person he wants to by ordering that a button be pushed without any notion of what the constraints on that, what the procedures are, et cetera. And I think that undermines, you know, our legitimacy around the world and our democratic process in not allowing us to assess whether what we're doing -- what they're doing in our name is legal or not.
WEDGWOODI -- again, I'm great pals with David, but I doubt those three anadem criteria he put forward would satisfy him. You have to get into specifications of what the battlefield is, what does it mean to try to capture, how many policeman do you have to lose before you have made an adequate attempt to capture them by land. Forays, as we had tried in Yemen or as the Yemeni government had tried before, their targeting killing of the guy in the car. So it's either going to be almost taught illogical or else it's going to be sensitive to say which CIA station chief and which country has the trigger on a decision to go or not go under the president's criteria. That, I think, would be very hard share.
NNAMDIAre you interested in being that specific, David Cole, or are you looking for broader criteria?
COLENo, I think, broader criteria that's set forth -- the basic criteria that they applied -- not the fact's specific detail, but the basic criteria as to who falls within the category, what they have to find in order to do it, what they -- what principals of proportionality that they apply and what process they employ to reduce the risk of error which, you know, as we've seen from Guantanamo, the risk of error is huge in a conflict where people are not wearing uniforms who are fighting against us.
COLEAnd it's one thing to erroneously lock somebody up for several years as we've done many occasions at Guantanamo. It's another thing to erroneously kill somebody. There's no way of correcting that error. And so I'd want to know what the processes are that we have in place and I don't think telling the world that we have careful, fair processes in place would undermine our security. And I think it would increase our legitimacy.
NNAMDIRunning out of time, Ruth Wedgwood, but a lot of people were outraged when news reports surfaced, that during the Bush administration, the CIA had considered setting up hit squads to kill or capture al-Qaeda terrorists around the world. Hit squads that would be run with the help of private contractors. That program did not end up becoming a reality, but the drone program is very much a reality. In your view, is there a difference between the two?
WEDGWOODI haven't heard the phrase hit squads before, that sounds kind of Mafioso to me. The Gambino family is going -- taking out O.B.L. But -- and there is a concern, obviously, about not having violence in countries that otherwise well governed and fully governed. There's no reason to have a hit squad in Norway or a drone in Norway. You can rely on the Norwegian police. But in the case of, really, ungoverned areas or areas where the -- as in Pakistan, Islamabad itself says it can't manage to control the mountainous passes, doesn't dare send troops up there.
WEDGWOODWhether that's sincere or not on their part, it's a real fact. And there, I think, David is, again who I like very much, but it's just essentially asking for a targeting court. Ask every sergeant major who is on a battlefield in Germany to have an electronic submission to the FISA court to submit his target for approval for engagement. It operates much too fast to do that and the criteria necessarily are general.
NNAMDIAnd I'm afraid all -- that that's all the time we have. But this is a topic we'll be revisiting during the course of the coming weeks. So, Ruth Wedgwood, thank you for joining us.
NNAMDIRuth Wedgwood is the Edward R. Burling professor of international law and diplomacy at the Johns Hopkins School of Advanced International Studies. David Cole, thank you for joining us.
COLEThank you, Kojo.
NNAMDIDavid Cole is a professor of constitutional law and criminal justice at Georgetown University Law Center. We're going to take a short break. When we come back, how America can maintain its competitive grip on the global economy. We talk with author Adam Segal. I'm Kojo Nnamdi.
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