Tuesday, July 14, 2009

Obvious

Anyone who thinks the CIA ought not to target Al Queda leadership for killing is an idiot. Here is a pretty obvious legal distinction:

The title of the article uses the word assassination. This is unfortunate, not because it is not accurate in the sense we ordinarily use the term, but because US law and regulation contains a ban on "assassination." Assassination in that specific legal sense is prohibited - but also not defined in US law or regulation. However, successive administrations dating from the 1980s have taken the position - e.g., the speech in 1989 to which the article refers - that a targeted killing is not (prohibited) "assassination" if it meets the requirements for self-defense under international law, including self defense against terrorists. As then-Dept of State legal advisor Abraham Sofaer put it, the assassination ban does not apply to otherwise "lawful killings undertaken in self defense against terrorists." I don't know if this is open access online; it was issued in the Military Law Review in 1989, and Judge Sofaer and others have told me that it was vetted with DOD and the White House as being US policy and interpretations of law. I am not aware of anything that has overturned it as US interpretation of the US assassination ban.

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