8 Alb. Govt. L. Rev. 166 (2015)
Jordan J. Paust
As the war in Afghanistan dies down, some within the
Government of the United States and lawyers within the U.S.
Armed Forces will most likely reconsider whether a law of war
paradigm would be relevant with respect to future drone
targetings of members of al Qaeda, its associates, and other non-state
terrorist groups that operate in Afghanistan and in other
parts of the world. With respect to an alternative legal basis for
drone targetings under the international law of self-defense, they
will also most likely reconsider how the international law of self-defense
should be implemented in case of non-state terrorist
attacks emanating from within a foreign state. In particular,
detailed attention is likely to continue regarding who and what
can be targeted in response to new and ongoing terroristic non-state
actor armed attacks on U.S. embassies, U.S. military and
other U.S. nationals abroad and across our borders and what
criteria and features of context should be considered when
making a targeting decision. This article addresses whether the
laws of war apply to use of measures of armed force against
members of al Qaeda, the propriety of self-defense targetings of
non-state actors in a foreign state, who and what can be targeted
under the law of self-defense, criteria for operationalizing choice
with respect to when and how to target, and certain future types
of drones that might be utilized. Also addressed are reasons why
human rights law and the U.S. Constitution do not prohibit
legitimate self-defense targetings. A final section addresses
limitations that exist under a law enforcement paradigm and why
measures of self and collective self-defense are not simplistically
measures of domestic law enforcement.