Absent a War, Law Enforcement Principles Apply

The U.S. government's targeted killing program has been cloaked in secrecy, making it difficult to determine under which legal framework the government believes it operates. The few official statements made to date indicate that, at least to some extent, the Obama administration believes it is waging a war against al Qaeda and associated forces. Some targeted killings may be lawful during an armed conflict, and others as an exercise of law enforcement authority, but these frameworks are not interchangeable. In the absence of recognized conditions for an armed conflict under the laws of war, the issue is governed by law enforcement rules under international human rights law, which permit the use of lethal force only if necessary to stop an imminent threat to life.

Even if the effort to contain al Qaeda were properly considered an armed conflict, President Obama himself has recognized that all wars must end. During his May 2013 speech at the National Defense University, he warned that "a perpetual war ... will prove self-defeating, and alter [the United States] in troubling ways." The president has not yet declared an end to the war with al Qaeda. But it is not clear that current efforts against al Qaeda can be characterized under international law as an armed conflict. The president should take the next step and declare that only law enforcement rules now apply. This will serve not only to prevent excessive use of lethal force but also to send a powerful message that national security need not come at the expense of human rights.