A Legal Analysis of the Obama Administration's Position on Targeted Killings

Abstract

This article provides a legal analysis of President Barack Obama’s position on the use of drones for targeted killings in the continuing armed conflict with al Qaeda and the Taliban as outlined through the public speeches given by members of his Administration and through media reports of a White House Office of Legal Counsel opinion. When considered within the rubric of the Law of Armed Conflict (hereinafter “LOAC”), it appears that the Obama Administration’s policy of using drones for the targeted killing of enemy combatants is in compliance with the jus in bello principles of necessity, humanity, distinction, and proportionality. In contrast, the Administration’s alleged use of CIA operatives, rather than regular uniformed soldiers, in conducting drone strikes is contrary to the Administrations expressed position that the use of these drones in targeted killings does not constitute unlawful assassination or murder due to the belligerent’s privilege. Further, the Administration’s position that the Executive branch can independently and secretly satisfy the rigors of constitutional due process that may apply to the targeted killing of an American citizen is completely inconsistent with established Constitutional law. Finally, the Administration’s application of the imminent danger exception to Fourth Amendment protections against governmental use of lethal force is misplaced; as such protections would apply in a law enforcement paradigm not in targeted killings justified under LOAC, regardless of the citizenship of the target.