¹ President Obama issued an executive order authorizing the continuation of a system of permanent detention for terror suspects detained in the course of fighting the war on terror. Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, Exec. Order No. 13567 (March 7, 2011). Criticism of this Order was immediate and unambiguous. The Center for Constitutional Rights (CCR) said: “Today’s executive order. . .codif[ies the lawless] status quo. The creation of a review process that will take up to a year is a tacit acknowledgment that the Obama administration intends to leave Guantanamo as a scheme for unlawful detention without charge and trial for future presidents to clean up.” Press Release, Center for Constitutional Rights, “CCR Condemns President Obama’s Lifting of Stay in Military Tribunals” (March 7, 2011), available at <http://ccrjustice.org/newsroom/press-releases/ccr-condemns-president-obama%E2%80%99s-lifting-of-stay-military-tribunals>. Executive Director of the ACLU, Anthony Romero, issued the following statement: “providing more process to Guantánamo detainees is just window dressing for the reality that today’s executive order institutionalizes indefinite detention, which is unlawful, unwise and un-American.” Press Release, ACLU, “President Obama Issues Executive Order Institutionalizing Indefinite Detention” (March 7, 2011), available at <http://www.aclu.org/national-security/president-obama-issues-executive-order-institutionalizing-indefinite-detention> accessed November 4, 2011.

² See Harold Koh, Legal Adviser to Dept. of State, Address at American Society of International Law, “International Law and the Obama Administration” (March 25, 2010), available at <http://www.state.gov/s/l/releases/remarks/139119.htm> accessed November 4, 2011 (defending the use of targeted killing as part of armed conflict with enemies in the war on terror).

³ Tara Mckelvey, “Inside the Killing Machine,” Newsweek, February 13, 2011.

^4–5 There were 1,172 reported kill or capture raids completed between March 2011 and September; see Alex Strick van Linschoten and Felix Kuehn, “A Knock on the Door: 22 Months of ISAF Press Releases” p. 12, available at (https://www.afghanistan-analysts.net/uploads/AAN_2011_ISAFPressReleases.pdf).

⁶ Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and Law 7 (Series on Counterterrorism and American Statutory Law, Working Paper, May 11, 2009), <http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1415070_code235051.pdf?abstractid=1415070&mirid=1> accessed November 4, 2011.

⁷ See U.N. Gen. Assem. [GAOR], Hum. Rts Council, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (May, 2010) (prepared by Philip Alston) (criticizing use of targeted killing in areas beyond zone of hostilities); Mary Ellen O’Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009 (Notre Dame Law Sch. Legal Stud., Research Paper No. 09-43, 2010), <http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1654055_code1212987.pdf?abstractid=1501144&mirid=1> accessed November 4, 2011.

⁸ See Scott Wilson and Al Kamen, “‘Global War on Terror’ Is Given New Name,” The Washington Post, March 25, 2011, available at <http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/AR2009032402818.html> last accessed November 2, 2011. In a memo purportedly at the direction of the Office of Management and Budget, the Defense Department’s office of security review noted that “this administration prefers to avoid using the term ‘Long War’ or ‘Global War on Terror’ [GWOT.] Please use ‘Overseas Contingency Operation.’”

⁹ J.S. Bybee, “Memorandum for John Rizzo: Acting General Counsel of the Central Intelligence Agency” memo, US Deparment of Justice, August 1, 2002.

¹⁰ See, e.g., Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.

¹¹ 18 U.S.C. § 2340A.

¹² “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” General Assembly resolution 39/46 of 10 December 1984.

¹³ See Al-Aulaqi v. Obama, No. 10–1469 (JDB) (D.D.C. December 7, 2010). For more information on the lawfulness of operations against propagandists, see Lawrence Preuss, “International Responsibility for Hostile Propaganda against Foreign States,” The American Journal of International Law, Vol. 28, No. 4 (Oct., 1934), 649–68; and Frits Kalshoven, Reflections on the Law of War: Collected Essays (Leiden, Martinus Nijhoff Publishers, 2007), 493.

¹⁴ Gary Solis also makes the point that this potentially makes these officials legitimate targets themselves. See “CIA Drone Attacks Produce America’s Own Unlawful Combatants,” Wash. Post, March 12, 2010 (“It makes no difference that CIA civilians are employed by, or in the service of, the U.S. government or its armed forces. They are civilians; they wear no distinguishing uniform or sign, and if they input target data or pilot armed drones in the combat zone, they directly participate in hostilities—which means they may be lawfully targeted.”).

¹⁵ For an argument against this position, see Richard V. Meyer, “The Privilege of Belligerency and Formal Declarations of War,” in this Volume, ch. 7. Responding to Claire Finkelstein, “Responsibility for Acts of War” (2011) (unpublished manuscript, on file with author).

¹⁶ Remarks presented in the Frontline program Kill/Capture by John Nagl, a former counterinsurgency adviser to the former commander of forces in Afghanistan, and General Petraeus, current Director of the CIA. Discussed in Kevin Govern, “Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military objective?,” in this Volume, ch. 13.

¹⁷ Walzer, Just and Unjust Wars, 4th edn (Basic Books, 2006).

¹⁸ Michael L. Gross, Moral Dilemmas of Modern War: Torture, Assassination, and Blackmail in an Age of Asymmetric Conflict (Cambridge University Press, 2010) 102. Note that Richard Meyer strongly agrees with this assertion about justifying acts of war. See Meyer, “The Privilege of Belligerency,” in this Volume, ch. 7.

¹⁹ The Model Penal Code, § 2.10 provides: “It is an affirmative defense that the actor, in engaging in the conduct charged to constitute an offense, does no more than execute an order of his superior in the armed services that he does not know to be unlawful.”

²⁰ I develop the category of preemptive practices in response to threats of violence in “Threats and Preemptive Practices,” 5 Leg. Theory 311 (1999).

²¹ See Michael L. Gross, “Assassination and Targeted Killing: Law Enforcement, Execution or Self-Defense?” 23 J. Applied Phil. 323, 324 (2006).

²² See, e.g., Nigel West, “International Special Operations Forces 2010 Year in Review,” June 15, 2011, available at <http://www.defensemedianetwork.com/stories/international-special-operations-forces-2010-year-in-review/> last accessed November 2, 2011. See also Philip Alston, “The CIA and Targeted Killings Beyond Borders,” September 2011, at 43–4, available at <http://ssrn.com/abstract=1928963> last accessed November 2, 2011.

²³ See, e.g., Al-Aulaqi v. Obama, supra n. 13.

²⁴ McKelvey, supra n. 3.

²⁵ Solis, supra n. 14.

²⁶ See Hague Convention (IV) Respecting the Laws and Customs of War on Land, Annex art. 23 (b) (1907) (defining qualifications of “belligerents” as requiring “a fixed distinctive emblem recognizable at a distance”). See also Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, art. 37 (1)(c) (“It is prohibited to kill, injure or capture an adversary by resort to perfidy [including].... the feigning of civilian, non-combatant status.”). For a criticism of this view that uniforms matter, see Christopher Kutz, “The Difference Uniforms Make: Collective Violence in Criminal Law and War,” 33 Phil. & Public Aff. 148, 180 (2005). For more information on recent developments in this view, see Kevin H. Govern, “The Hunt for Bin Laden—Task Force Dagger—On the Ground with the Special Forces in Afganistan: Reviewed by Lieutenant Colonel Kevin H. Govern,” 179 Mil. L. Rev. 210, 217–18.

²⁷ Anderson supra n. 6.

²⁸ See O’Connell, supra n. 7.

²⁹ For one response to this question, see Kevin Govern, “Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective?” in this Volume, ch. 13.

³⁰ For one response to this question, see Kenneth Anderson, “Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy,” in this Volume ch. 14.

³¹ Kevin Govern, “Expedited Justice: Gaddafi’s Death and the Rise of Targeted Killings,” JURIST—Forum, Oct. 25, 2011, available at <http://jurist.org/forum/2011/10/expedited-justice-the-trend-to-kill-over-capture.php> accessed November 2, 2011.

³² On This Day: 1988: “Jumbo jet crashes onto Lockerbie,” BBC News, December 21, 1988, <http://news.bbc.co.uk/onthisday/hi/dates/stories/december/21/newsid_2539000/2539447.stm> accessed November 2, 2011.

³³ For instance, as the leader of Libya, Qaddafi became Chairperson of the African Union on February 9, 2009. Press Release, African Union, Leader Muammar Gaddafi Visits AU Headquarters (Feb. 5, 2009).

³⁴ See Kristin Eichensehr, “On the Offensive: Assassination Policy under International Law” 25(3) Harvard Law Review.

³⁵ For more on this issue, see Kevin Govern “Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective?,”in this Volume, ch. 13.

³⁶ On this doctrine see Claire Finkelstein and Leo Katz, “Contrived Defenses and Deterrent Threats: Two Facets of One Problem,” 5 Ohio. J. Crim. L. 479 (2008); Paul Robinson, “Causing the Conditions of One’s Own Defense: A Study of the Limits of Theory in Criminal Law Doctrine,” 71 Va. L. Rev. 1 (1985); also see Leo Katz, “Targeted Killing and the Strategic Use of Self-Defense,” in this Volume, ch. 17.

³⁷ Model Penal Code § 3.04(2)(b)(i).

³⁸ MPC § 2.09(2).

³⁹ The point remains controversial in domestic criminal law as well, as some commentators take the view that creating the conditions of our own defense does not eliminate the entitlement to claim it, since from the standpoint of the aims of the criminal law, the self-defender has done “nothing wrong,” even if his own impermissible scheming placed him in a position in which he was able to claim the defense.

⁴⁰ I discuss the general point below in commenting on Jeff McMahan’s view of the relation between these two concepts. See infra section III.

⁴¹ See Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (Yale University Press, 1970).

⁴² See, e.g., Ryan P. Alford, “The Rule of Law at the Crossroads: Consequences of Targeted Killing of Citizens,” Utah Law Review (forthcoming).

⁴³ See Al-Aulaqi v. Obama, supra n. 13.

⁴⁴ For more on the circumstances under which he was targeted, see Govern, supra n. 31.

⁴⁵ See Kenneth Anderson, “Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘Legal Geography of War’” in Peter Berkowitz (ed.), Future Challenges in National Security and Law (Hoover Institution, Stanford University, forthcoming).

⁴⁶ On the importance of the firing mode, see Henry S. Kenyon, “Multipurpose Missile Program Accelerates,” Signal Online, June 2009, available at <http://www.afcea.org/signal/articles/templates/Signal_Article_Template.asp?articleid=1962&zoneid=263> accessed November 2, 2011.

^47–48 Katko v. Briney, 183 N.W.2d 257 (Iowa 1971) (holding a home owner liable for injuries to a trespasser caused by the owner’s use of a spring gun to protect the property). The Supreme Court of Iowa had found the use of a spring gun to protect a home from intruders impermissible, on the ground that the automatic firing of the device made adjustment to unusual emergency situations impossible.

⁴⁹ Ibid. at 260.

⁵⁰ Such have been held to be unconstitutional. See Woodson v. N.C., 428 U.S. 280, 303 (1976) (holding that mandatory death penalty statute was unconstitutional because it failed “to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death”).

⁵¹ For more on this issue, see Anderson, “Efficiency in Bello and ad Bellum: Make the Use of Force Too Easy?,” supra n. 30.

⁵² See Mark Kurzem, The Mascot: Unraveling the Mystery of My Jewish Father’s Nazi Boyhood, (Penguin Publishers, 2002).

⁵³ After verifying his Jewish identify, and instructing the boy never to let anyone “pull down his pants,” the officer adopted and protected the child, fitting him with a child-size Latvian SS uniform of his own, and allowing him to live as the “mascot” of the SS unit of which he was a part until near the end of the war.

⁵⁴ According to Michael Walzer, this is the central concept in the theory of war. Michael Walzer, Just and Unjust Wars, supra n. 17 ch. 1.

⁵⁵ Ibid. at 34–41.

⁵⁶ Jeff McMahan, Killing in War (Oxford University Press, 2009).

⁵⁷ But see my argument in Responsibility for Acts of War (2011) (unpublished manuscript) to the effect that the moral equality thesis exists in domestic criminal law doctrine as well.

⁵⁸ McMahan, supra n. 56, at 15–32.

⁵⁹ Ibid. at 174.

⁶⁰ Ibid. at 162. While I would agree with McMahan, that the domestic criminal law echoes just war theory, I see both as committed to the moral equality of combatants, whereas he argues against the thesis in both contexts. As I have pointed out above, however, maintaining the correspondence of justification in war and justification in domestic defenses is acknowledged by McMahan to be at least a somewhat revisionary project on the criminal law side. If we are engaged in normative reconstruction of actual practices, then, it seems it may be more defensible to side with the theory that better captures the norms of current justificatory practice in the criminal law.

⁶¹ See Hugo Grotius, De Iure Belli ac Pacis, G.L. Williams (trans.), (Clarendon Press, 1950), 2:10–11, “first, that It shall be permissible to defend [one’s own] life and to shun that which threatens to prove injurious; secondly, that It shall be permissible to acquire for oneself, and to retain, those things which are useful for life. The latter precept, indeed, we shall interpret with Cicero as an admission that each individual may, without violating the precepts of nature, prefer to see acquired for himself rather than for another, that which is important for the conduct of life. Moreover, no member of any sect of philosophers, when embarking upon a discussion of the ends [of good and evil], has ever failed to lay down these two laws first of all as indisputable axioms. For on this point the Stoics, the Epicureans, and the Peripatetics are in complete agreement, and apparently even the Academics [i.e., the Skeptics] have entertained no doubt.”

⁶² For more on the imminence requirement, see Russell Christopher, “Imminence in Justified Targeted Killing,” in this Volume, ch. 9.

⁶³ Tennessee v. Garner, 471 U.S. 1, 722 (1985).

⁶⁴ Hobbes, Leviathan, Part I, Chapter XIII, para. 9.