Neither Legal nor Justiciable: Targeted Killings and De Facto Immunity within the War on Terror
This article seeks to highlight and discuss many of the legally problematic aspects of the US’s War on Terror targeted killing policies and programs, namely drone strikes and “capture/kill” missions. First, the US has sought to characterize the War on Terror, in its entirety, as a “non-international armed conflict of international scope” and, as a result, governed by the paradigm of International Humanitarian Law (IHL). While the factual basis of this definition is dubious at best, it is exceedingly more permissive of the sort of lethal force that central to the targeted killing program. Suspending disbelief, however, it seems equally questionable that the US actually respects the legal provisions of a non-international armed conflict. Though current disregard for transparency impedes a more thorough analysis, what information is available strongly suggests that targeted killing policy explicitly violates the IHL principles of proportionality and distinction. Cumulatively and effectively, domestic law, unfortunately, does not appear any more capable of constraining targeted killing policy’s inherent potential for widespread abuse, with current juridical dogmas regarding questions of standing, political questions doctrine, and state secrets privilege cumulatively effectively rendering the program non-justiciable.