The Status of State and Nonstate Actors in Postwar Hostilities: Restoring the Rule of Law to US Targeted Killing Operations.

• Author: Finkelstein, Claire

TABLE OF CONTENTS 1. INTRODUCTION 1164 11. THE TRADITIONAL NOTION OF COMBATANCY 1169 III. UNLAWFUL COMBATANCY AND THE BUSH DOCTRINE 1173 IV. OBAMA AND THE TARGETING OF NONSTATE ACTORS 1178 V. TRUMP AND THE EXTRAJUDICIAL KILLING OF STATE ACTORS 1182 VI. PRESERVING THE DISTINCTION BETWEEN WAR AND CRIME 1188 VII. THE ROLE OF THE STATE IN ESTABLISHING COMBATANCY 1196 VIII. IMPLICATIONS FOR DOMESTIC LAW ENFORCEMENT 1199 I. INTRODUCTION

With the extrajudicial killing of Qassim Soleimani, an Iranian major general in the Islamic Revolutionary Guard Corps and the commander of Iran's Quds Force, the United States ushered in a new era in the extended war on terror: the use of targeted killing against state actors outside the context of war. At first, the Trump administration attempted to justify the killing as valid under the Law of Armed Conflict (LOAC). The explanations offered, however, were inconsistent and contradictory. (1) Former Secretary of State Mike Pompeo, for example, claimed that the killing was in response to imminent threats to American lives. (2) But the administration never produced any evidence of the imminent attack it supposedly anticipated. Indeed, Pompeo himself admitted that "[w]e don't know precisely when and we don't know precisely where," (3) though President Trump claimed in a news conference that they were looking to blow up our embassy. (4) Later, Trump claimed that he thought it could have been four embassies, military bases, or a lot of other things, but that it was imminent. (5) Secretary of Defense Mark Esper, however, admitted that he saw no specific evidence to back up Trump's claims. (6) Thereafter, talk of imminence as a justification for the strike died away quickly.

While no longer in the administration at the time of the Soleimani strike, former National Security Advisor General H.R. McMaster's remarks on this topic may have better reflected the Trump administration's thinking on Soleimani. McMaster argued that the killing was justified because it was "the righteous use of violence." (7) For this reason, McMaster claimed, imminence was not required. But scholars and public policy experts have failed to offer any explanation that would justify the killing under the LOAC. (8)

Since the Soleimani killing, there have been other strikes on state actors. In November 2020, Iran's top nuclear scientist, Mohsen Fakhrizadeh, was killed in an Israeli ambush. (9) According to recent reporting, Fakhrizadeh was killed with the use of an A.I.-based machine gun that fired at his vehicle from another car. (10) It is also now clear that the Trump administration was not only fully read into the intended strike, but President Trump himself, along with Secretary of State Mike Pompeo and CIA Director Gina Haspel, had participated in its planning since 2019. (11) Indeed, reporting indicated that the two strikes were related: the United States and Israel were encouraged by the rather tepid response to the killing of Soleimani to think that a hit on Fakhrizadeh might be politically feasible. (12)

Unless the United States is at war or has a basis for waging war on Iran, attacking a high-ranking military official is a clear jus ad bellum violation. How did US military and national security officials come to justify such actions? The seeds of acts of war such as these were sown almost two decades earlier in the approach taken by Bush-administration lawyers as well as military and intelligence officials to a different problem: the status of violent nonstate actors in Iraq and Afghanistan who took part in highly militarized terrorist organizations. Instead of classifying them as either combatants or civilians, as the principle of distinction requires, the Bush administration created a sui generis category variously called "unlawful combatants," "enemy combatants," or "unprivileged enemy belligerents." (13) Obama-and then Trump-administration lawyers largely maintained this same legal structure, presumably in order to facilitate the legal justification of targeted killing without a prior need to attempt capture. Under the US approach to this category, so-called unlawful combatants lack the rights that attach to combatants under the laws of war. (14) Operating in this "no man's land" between two legal regimes--the laws of war and the criminal law--has spawned confusion and damaged the rule of law.

This Article will focus on the transition from the Bush-era concept of unlawful combatancy, (15) which served to justify the torture of detainees captured in Iraq and Afghanistan, to the use of that concept in justifying targeted killing of nonstate and, ultimately, state actors under Presidents Obama and Trump. Although the United States has formally ended its engagement in Afghanistan, it will continue to fight terror through direct action and intelligence operations, an approach now rendered particularly complex given Taliban rule. In this new phase of the war on terror, the focus will inevitably shift from nonstate actors to state actors who commit acts of terror or sponsor terrorism. The United States has grappled with the threat posed by state sponsors of terror in the past with respect to Iran, Syria, Saudi Arabia, North Korea and other nations, but America confronts this threat with fresh urgency: How will the United States and its allies address acts of terror that are either directly committed by or sponsored by the reigning state power? (16) Here is where the lasting impact of the post-9/11 notion of unlawful combatancy lies: the same techniques that were justified by the unlawful combatancy framework have now proven useful in operations against state actors, such as in the case of Qassim Soleimani. If the international community comes to recognize the Taliban in Afghanistan as the representative of the Afghan government, the problem of state-sponsored terrorism will be particularly stark. (17) The absence of a clear legal framework for the use of targeted killing, particularly remote killing by unmanned aerial vehicles (UAVs), has left the United States and its allies largely at sea with regard to the legality of targeted killing operations more generally.

The legal ambiguity of US targeted killing operations against nonstate actors has thus spawned a comparable ambiguity with regard to state actors, a development that in retrospect seems inevitable given the dramatic increase in the number of targeted killings over the past three administrations. Overall, since 2010, the United States has killed upwards of 16,900 people by drone strike, of which at least 2,200 people were civilians. (18) Despite the fact that lethal drone technology has been in use almost since 9/11, the United States still has not established a clear and unequivocal legal framework for assessing the conformity of drone strikes to the confines of International Humanitarian Law (IHL). A practice that is premised on a vague or uncertain legal foundation will naturally tend to spread, taking its legal uncertainty with it. (19) For this reason, legal ambiguity in one area of legal practice seeps over into adjacent areas of practice. Where war is concerned, this legal ambiguity poses a threat to national security and to the rule of law. Nor will the current difficulties stop at the boundaries of war. US policy has not only effaced the distinction between state and nonstate actors, but it has weakened the distinction between war and crime as well. If the United States continues down this path, it will weaken not only the law of war, but the constitutional guarantees protecting domestic criminal suspects as well.

Where targeted killing is concerned, the latter point is amply demonstrated by the case of Anwar al-Awlaki, an American citizen who was killed by a US drone strike in Yemen in 2011. (20) In seeking to justify al-Awlaki's killing, the Office of Legal Counsel (OLC) provided a problematic legal analysis across several classified memos, arguing that geography was not a constraint and that the requirement of "imminence" could be satisfied even when the timeframe was highly attenuated. (21) The point of these memos was to establish a basis for national self-defense under Article 51 of the UN Charter, despite the fact that al-Awlaki was an American citizen and that imminence in any traditional sense was almost surely lacking. (22) The OLC memo also insisted that the decision regarding al-Awlaki's fate was not reviewable in an Article III court, a proposition shockingly embraced by the federal district court itself when presented with a petition from al-Awlaki's father. (23)

It is now time to rethink the Bush-era legal framework from the post-9/11 period and seek to harmonize US policy and domestic law with basic principles of International Humanitarian Law (IHL). The United States must also, however, harmonize national security law and practice with constitutional principles of domestic criminal law, most importantly the concept of due process. It is critical for the United States to undertake this work now, before the next significant foreign or domestic threat emerges. Grappling with normative questions relating to military engagement or law enforcement becomes impossible in the heat of battle. At a moment when our military presence overseas, specifically in the Middle East, has been nearly eliminated and the United States is entering a period of reduced kinetic engagement, the United States can afford to reconsider the legal framework needed to justify military engagement with violent foreign extremists.

Surveying the available options, there is an array of possible legal frameworks available for this purpose, distributed along what could be thought of as a "combatancy scale." On one end of the scale, the United States could accord full combatancy status, such as would normally attach to members of a government-controlled state military. On the other end are domestic criminal suspects, who are normally protected from...