From the Washington Post comes news that the United States is once again considering an expansion of so-called “signature” strikes in Yemen, which in the past have been strictly limited. Signature strikes target groups of unknown individuals who have been identified, by surveillance, as militants or terrorists based on their activities or their location. But these signature strikes do not target specific, named individuals, whose identity has been confirmed and vetted by the Executive Branch’s program on targeted killings.
The issue isn’t new and last year Charlie Savage published an article in the Times about a legal dispute within the administration over the signature strikes. The Defense Department and CIA lawyers are in favor of authorizing them, while State Department lawyers have expressed grave concerns about them.
The legal issue stems, in part, from an uncertainty about how far we can extend the “armed conflict with al-Qaeda” as a legal rationale for engaging in these strikes. The targets in Yemen are part of the AQAP (al Qaeda in the Arabian Peninsula) and in Somalia are part of al-Shabab, neither of which are al-Qaeda proper in the Afghanistan-Pakistan sense of the name. Both of are best described as regional syndicates or affiliates of al Qaeda.
This is more than just a semantic issue. The question is whether the United States is engaged in an armed conflict with these groups, especially since each has parochial and local concerns – i.e. a civil war in Yemen and Somalia respectively. Both want to control their own territory and defeat a sitting government.
One legal solution (favored apparently by DoD and CIA) is to consider these groups as co-belligerents of al-Qaeda proper, thus making them subject to attack under the law of neutrality. The law of neutrality says that a state can be subject to attack in an international armed conflict with they refuse to declare their neutrality; their silence can be taken as evidence of their co-belligerency with the enemy. Did the United States ask, either formally or functionally, for a declaration of neutrality from these groups?
There is another related issue, which turns on an irony. Some philosophers object to TKs because they pick up specific individuals, something that makes them seem more like assassinations. Signature strikes move away from this model, in the sense that the drone operators have no idea who exactly these individuals are, except a vague determination that they are combatants or civilians exercising a “continuous combat function” – i.e. foot soldiers in an organized armed group.
This resolves one potential difficulty but causes another. The targets are no longer named individuals; the attacks are no longer targeted, nor are they assassinations per se. And so the due process problems would appear to be correspondingly less relevant to this situation. We ordinarily do not couch the victims of large-scale strategic bombing campaigns as having a due process protection that has been violated.
The irony, of course, is that the government could avoid one element of the legal controversy surrounding TKs by deciding to kill more individuals (with greater uncertainty about the threat they pose) rather than less, or just one. This would not seem to be what the critics had in mind.
All of this might be evidence that the “named” aspect of individual TKs, and the precision by which they are carried out, should not be considered a defect, but rather a virtue.