Probably still the cold doing the thinking, but I guess I’ll jot down some thoughts on the kill list and drone policy.
It seems to me that the law of war certainly allows a belligerent to kill a member of the enemy force in the midst of hostilities, without regard to the citizenship of that person. I don’t think this is particularly controversial, although I suppose there are pacifists and opportunists who might disagree. It also seems to me that the law of war allows a belligerent to kill an enemy commander (e.g., Admiral Yamamoto) while that commander is not presently engaged in active hostility. Indeed, rank isn’t important: it seems to me that the law of war allows a belligerent to attack enemy soldiers who are asleep in their barracks, even if hung over (say from celebrating Christmas).
The troublesome part of the whole thing, though, is deciding in this particular war who is a member of the enemy force. During active hostilities, one can certainly look at conduct, and make a defensible judgment. And there are plenty of active hostilities going on. This is only going to help, though, with people in the lowest ranks: commanders aren’t going to be engaging in active hostilities, so you don’t meet them on a battlefield. That leaves two ways to find out who they are: they can tell you themselves by press release (as some senior Al Qaida have done) or through intelligence.
It will surprise no one to learn that I think the intelligence process so deeply flawed that there should be a default presumption that its conclusions, what ever they are, are incorrect. Indeed, I don’t see how anyone who lived through the last decade can argue the contrary in good faith: you don’t even after to choose between stupidity, venality, and credulity as primary motivations behind the various flaws we’ve seen over the years (and I’m quite sure that the intelligence failures that have become public are but a tiny percentage of the failures that have plagued our efforts to find out what is going on) to be forced to admit that much of what is ‘known’ is simply not so.
So, what are we supposed to do? As an unapologetic procedural liberal, I guess what I think ought to be done is indict people you think are committing crimes, and attempt (with cooperation of appropriate authorities) to arrest them. I think, though, that one has to recognize that this is not going to be feasible in many instances. And also that a belligerent has a legitimate interest in engaging with members and commanders of the enemy force, without regard to their citizenship.
I haven’t really thought this all the way through, but I’m wondering whether it wouldn’t make plenty of sense to publish the ‘kill list’ and allow any American on it notice and an opportunity to be heard. Looking at the Aulaqi example, no harm seems to have come from his knowledge that he was on such a list. He specifically declined an opportunity to litigate the legality of his inclusion on the list (hence I find myself less sympathetic to his situation than many others seem to be, or than I am for his son). I suppose there might be some risk of exposing intelligence sources, but I’m frankly ok with imposing that sort of requirement before the person can be executed.
Certainly, the unwillingness to publish the list, and allow someone erroneously listed to contest the listing, gives the lie to the supposition that execution is made necessary by the conduct of the target. Mr. Brennan can say ‘they can surrender’ all he wants, but people who do not belong on the list — and do not even know they are on a list — can have no obligation to ‘surrender’ whatever that even means.
The list is said to be quite short, so the burden of litigating this doesn’t seem excessive. Obviously, you’d have to work out ways to keep some things classified. But, in reality, I expect virtually every person who belongs on the list to behave exactly as Aulaqi did: people are not going to litigate losing cases, but only where they have a reasonable chance at showing that the intelligence showing them to be a member of the enemy force is completely incorrect.