via @wikileaks: original url [pdf]

Conclusion

The ultimate lesson for Congress and the Obama Administration about targeted killings is “Use it or lose it.” This is as true of its legal rationale as it is of the tool itself. Targeted killings conducted from standoff platforms, with improving technologies in surveillance and targeting, are a vital strategic, but also humanitarian, tool in long-term counterterrorism. War will always be important as an option; so will the tools of law enforcement, as well as all the other non-force aspects of intelligence work: diplomacy and coordination with friends and allies. But the long-standing legal authority to use force covertly, as part of the writ of the intelligence community, remains a crucial tool—one the new administration will need and evidently knows it will need. So will administrations beyond it.

Although the U.S. is in a war, in its view, with al Qaeda, much of the world does not accept this premise and the threat from transnational terrorism will not, in any event, forever be with al Qaeda. Even within the world of jihadist transnational violence, al Qaeda is gradually becoming a notional enemy. This is a popular notion with some as a meme by which to announce that the threat is past or overrated; that is not my intent here at all. Rather, I am concerned to ensure that we do not tie our hands needlessly tomorrow by assuming that the nature of the threat and the specific legal rationale offered to address it will always be the same. Transnational jihadist networks are indeed becoming more diffuse, less and less directly tied in a “corporate” sense to al Qaeda. They are inspired by it, perhaps, and driven by a shared ideology, but not under its command, control, active direction, or other indicia of affiliation in an ordinary sense.104 Terrorism by ideological affinity and loose network is likely to become more, rather than less, the norm into the future. The death of Osama bin Laden and his top aides by Predator strike tomorrow would alter national security counterterrorism calculations rather less than we might all hope. As new terrorist enemies emerge, so long as they are “jihadist” in character, we might continue referring to them as “affiliated” with al Qaeda and therefore co-belligerent. But the label will eventually become a mere legalism in order to bring them under the umbrella of an AUMF passed after September 11. Looking even further into the future, terrorism will not always be about something plausibly tied to September 11 or al Qaeda at all. Circumstances alone, in other words, will put enormous pressure on—and ultimately render obsolete—the legal framework we currently employ to justify these operations.

What we can do is to insist on defining armed conflict self-defense broadly enough, and human rights law narrowly enough—as the United States has traditionally done—to avoid exacerbating the problem and making it acute sooner, or even immediately.

Ideology and ideas matter in shaping policy, especially at the intersection of international realpolitik, diplomacy, and law. Thus, I have made frequent reference to a loose community of interpretation, formation, deployment, and, really, “ownership” of international law. Such “ownership” matters too. We stand at a curious moment in which the strategic trend is toward reliance upon targeted killing; and within broad U.S. political circles even across party lines, a political trend toward legitimization; and yet the international legal trend is also severely and sharply to contain it within a narrow conception of either the law of armed conflict under IHL or human rights and law enforcement, rather than its traditional conception as self-defense in international law and regulation as covert action under domestic intelligence law. Many in the world of ideas and policy have already concluded that targeted killing as a category, even if proffered as self-defense, is unacceptable and indeed all but per se illegal. If the United States wishes to preserve its traditional powers and practices in this area, it had better assert them. Else it will find that as a practical matter they have dissipated through desuetude.