KENNETH ANDERSON on the law of “targeted killing.” “The United States does not believe it is acting extralegally, let alone illegally, in its counterterrorism programs, and it should be willing to say why. The U.S. government believes, as former State Department lawyer Ashley Deeks observed in a recent, influential paper, that states that are unable or unwilling to deal with terrorists in their midst lose claims of sovereignty, thus allowing other states to reach inside to deal with them. The U.S. government believes, moreover, in Koh’s formulation, that even covert operations undertaken outside of an armed conflict must still adhere to international law principles of necessity, distinction, and proportionality in their conduct; there are limiting principles of international law that the U.S. recognizes and abides by. The problem is, such public, official articulations are rare.” The “lawfare” crowd, on the other hand, speaks frequently and loudly.
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