On the Legality of Targeted Killings

Professor Kenneth Anderson writes in the Weekly Standard defending the legality of targeted killing campaigns such as those conducted by the United States against al-Qa'ida leaders in Pakistan (and Yemen and Somalia), and arguing that the Obama Administration should publicly explain the legal basis of such strikes in order to ensure their international legitimacy.  Anderson has written at length and persuasively on this topic from his regular perch at The Volokh Conspiracy.

However, I also think my friend David Bosco makes a valid point in his Foreign Policy blog, The Multilateralist, that explicitly stating the legal rationale might backfire diplomatically, as it would inherently require publicly declaring some states incapable of governing themselves.  This public shaming/embarrassment could undermine precisely the types of counter terror programs on which we want to partner with these states, as it calls into question that regime's very legitimacy. 

Additionally, having a strong rationale under international law hardly assures international support for U.S. military action.  Technically speaking, Saddam Hussein was found to be in violation of the terms of the 1991 cease fire agreement ending the first Gulf War 17 times, making Operation Iraqi Freedom legally legitimate as the renewal of hostilities initiated under Security Council Resolution 678.  But the subsequent liberation of Iraq was perceived as illegitimate throughout much of the world. 

Anderson acknowledges that "the international law community will never be satisfied," but thinks that if the Administration merely demonstrates "that it has a considered, plausible view of the law, whether shared by the critics or not" it "will achieve public legitimacy."  I am not really sure which public legitimacy Anderson is referring to here, but it seems that the American public already overwhelmingly believes these attacks to be legitimate.

Either way, I think David is correct that the Administration will continue to remain vague and evasive on this topic.