Obama's Advisers Debate the Limits of His License to Kill
The New York Times reports that the Obama administration's lawyers disagree about the president's authority to unilaterally mark people for death. Mind you, they all agree he has that authority; they just differ on how far it extends. Obviously people in Pakistan, "where the legal authority to attack militants who are battling United States forces in adjoining Afghanistan is not disputed inside the administration," are fair game if they are "deemed likely members of a militant group." But what about Yemen or Somalia? May U.S. missiles there "take aim at only a handful of high-level leaders of militant groups who are personally linked to plots to attack the United States," or is it OK to "also attack the thousands of low-level foot soldiers focused on parochial concerns," such as "controlling the essentially ungoverned lands near the Gulf of Aden"? The president's more cautious advisers worry that too broad a definition of the president's license to kill "could lead to an unending and unconstrained 'global' war."
This dispute, like the argument over President Obama's authority to wage war in Libya without congressional approval, pits State Department legal adviser Harold Koh against Defense Department General Counsel Jeh Johnson. But in this case, according to the Times, it is Johnson who takes a broader view of presidential power, while Koh argues that to kill people outside of Afghanistan and Pakistan "the United States must be able to justify the act as necessary for its self-defense—meaning it should focus only on individuals plotting to attack the United States." That view is more along the lines of what you might expect from Koh based on his academic career before he joined the Obama administration, when he was known as a leading skeptic of executive power. I suspect that Obama, who adopted Koh's widely ridiculed argument that bombing Libya did not constitute "hostilities" under the War Powers Act, will suddenly have doubts about the former Yale Law School dean's legal acumen now that his advice puts limits on the president's freedom to kill at will.
Perhaps you are thinking, "Surely Congress will step in." Yes, but probably not in a good way:
It is considering, as part of a pending defense bill, a new authorization to use military force against Al Qaeda and its associates. A version of the provision proposed by the House Armed Forces Committee would establish an expansive standard for the categories of groups that the United States may single out for military action, potentially making it easier for the United States to kill large numbers of low-level militants in places like Somalia.
In an interview, Senator Lindsey Graham, a South Carolina Republican on the Armed Services Committee, said that he supported the House version and that he would go further. He said he would offer an amendment that would explicitly authorize the use of force against a list of specific groups including the Shabab [Islamist insurgents in Somalia], as well as set up a mechanism to add further groups to the list if they take certain "overt acts."
"This is a worldwide conflict without borders," Mr. Graham argued. "Restricting the definition of the battlefield and restricting the definition of the enemy allows the enemy to regenerate and doesn't deter people who are on the fence."
Far from worrying about that "unending and unconstrained 'global' war," Graham seems to relish the idea. After all, why on earth would you want to "restrict…the definition of the enemy," as opposed to letting the president order the death of anyone, anywhere, anytime for any reason that makes sense to him?
More on targeted killings here and here. More on the global battlefield of the War on Terror here and here.
