The New York Times recently said the following in an editorial.
The White House reportedly is developing rules for when to kill terrorists around the world. The world may never see them, given the Obama administration’s inclination toward unnecessary secrecy regarding its national security policy. But the effort itself is a first step toward acknowledging that when the government kills people away from the battlefield, it must stay within formal guidelines based on the rule of law — especially when the life of an American citizen is at stake.
For eight years, the United States has conducted but never formally acknowledged a program to kill terrorists associated with al-Qaida and the Taliban away from the battlefield in Afghanistan. Using drones, the Central Intelligence Agency has made 320 strikes in Pakistan since 2004, killing 2,560 or more people, including at least 139 civilians, according to the Long War Journal, a website that tracks counterterrorism operations. An additional 55 strikes took place in Yemen.
Administration officials have never explained in any detail how these targets are chosen. Are they killing people only associated with groups that participated in the Sept. 11, 2001, attacks, the limitation imposed by Congress when it authorized military force in 2001? Or are they free to remove any threat to the United States they perceive?
Officials insist they go after only actual belligerents covered in the 2001 legislation, but the public and the world have no way of knowing whether these decisions are made ad hoc, or how they would be interpreted by future presidents.
Before the election, when it looked as if Mitt Romney had a chance of winning the White House, administration officials began codifying these rules, according to a recent report in The Times by Scott Shane. President Barack Obama did not want to leave an “amorphous” program to his successor, one official told Shane anonymously.
That impulse was right, even if the reasoning was wrong. The rules for killing shouldn’t be amorphous simply because Romney might have taken over; they need to be rigorous and formalized for Obama, too. If he sets proper boundaries, it would create a precedent that his successors would have to justify breaking.
Providing a wide latitude to kill would be worse than pointless. Any rules should specify that no one can be killed unless actively planning or participating in terrorism, or helping lead al-Qaida or the Taliban. Raising money for terror groups, or making tapes urging others to kill, does not justify assassination, and neither does a threat or a revolt against another government. Killing should be a last resort, when it can be demonstrated that capture is impossible. Standards for preventing the killing of innocents who might be nearby should be detailed and thorough. (Most of these rules are already part of international law.)
Standard police methods should be used on U.S. soil. And if an American citizen operating abroad is targeted, due process is required. We have urged the formation of a special court, like the Foreign Intelligence Surveillance Court, that could review the evidence regarding a target before that person is placed on a kill list. Otherwise, the government should establish a clear procedure so officials outside the administration are allowed to pass judgment on assassination decisions.
Obama has acknowledged the need for a “legal architecture” to be put in place “to make sure that not only am I reined in but any president’s reined in.” Yet his administration has resisted legal efforts by The Times and the American Civil Liberties Union to make public its secret legal opinions on these killings. Once the rules are completed, they should be shown to a world skeptical of countries that use deadly force without explanation.
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