The Obama Administration’s Targeted Killing Program: A Response to Jeh Johnson

The Distance Between Principle and Practice
April 2013
Yale Law and Policy Review

The United States has carried out dozens of operations in Yemen as part of an expanding program of “targeted killing.” While the government deployed cruise missiles in the strike in al-Majalah in 2009 and today relies largely on unmanned drones in targeted killing operations, its underlying claim of authority is the same—that pursuant to the Authorization for the Use of Military Force passed by Congress in response to 9/11 and pursuant to international law, the United States may kill suspected terrorists outside of the usual constraints on the use of lethal force, potentially anywhere targets may be found. As high-ranking Administration officials have discussed, the government may conduct such killings on the premise of a global armed conflict with al Qaeda, the Taliban, and “associated forces,” and as a matter of national self-defense. Conducted by the CIA and the covert Joint Special Operations Command (JSOC) of the U.S. military, these operations target individuals not just in the battlefield in Afghanistan, but also routinely or increasingly in Pakistan, Yemen, Somalia, and perhaps beyond. The program that President Obama claims to keep tethered “on a very tight leash” has nonetheless killed between 2,000 and 4,000 people, according to various estimates, though the Administration refuses to release its own data. Indeed, the CIA still maintains in litigation that the program’s very existence is a secret that it can neither confirm nor deny.

In discussing the Administration’s counterterrorism strategy during his ad- dress at Yale Law School in February 2012, Jeh Johnson, then the General Counsel of the U.S. Department of Defense, articulated several sound statements of principle and policy, but none account for the Obama Administration’s targeted killing program. This Essay traces the distance between principle and practice with respect to four aspects of that program: the premise of a world-ranging armed conflict, the scope of who can be targeted, the Administration’s continued withholding of information, and its opposition to judicial review.

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April 3, 2015