Hate Obama's Drone War? - By Rosa Brooks

Remember "sovereignty"?

Kiss it goodbye.

There's been much comment on the Obama administration's recently leaked Justice Department white paper on the targeted killing of U.S. citizens overseas, but most of the debate has focused on the administration's Orwellian interpretation of the term "imminence." Less remarked upon has been its equally elastic theory of sovereignty.

In a nutshell, the U.S. legal theory of sovereignty is this: "We have it; you don't."

Sovereignty has long been a core concept of the Westphalian international legal order. The basic idea is simple: In the international arena, all states are formally considered equal and possessed of the right to control their own internal affairs free of interference from other states. That's what we call the principle of non-intervention -- and it means, among other things, that it's generally a big international law no-no for one state to use force inside the borders of another sovereign state.

There are some well-established exceptions, but they are few in number. A state can lawfully use force inside another sovereign state with that state's invitation or consent, or when force is authorized by the U.N. Security Council, pursuant to the U.N. Charter, or in self-defense "in the event of an armed attack."

The principle of sovereignty might appear to pose substantial problems for U.S. drone policy: How can the United States lawfully use force to kill suspected terrorists inside Pakistan, or Somalia, or Yemen, or -- hypothetically -- in other states in the future? Obviously, the United States does not have Security Council authorization for drone strikes in those states, so the justification has to rest either on consent or on some theory of self-defense. Thus, the DOJ white paper blithely asserts that targeted killings carried out by the United States don't violate another state's sovereignty as long as that state either consents or is "unwilling or unable to suppress the threat posed by the individual being targeted."

As I noted last week, that sounds superficially plausible, but since the United States views itself as the sole arbiter of what constitutes an imminent threat and whether a state is "unwilling or unable" to suppress that threat, the logic is in fact circular.

It goes like this: The United States -- using its own infinitely malleable definition of "imminent" -- decides that Person X, residing in sovereign State Y, poses a threat to the United States and requires killing. Once the United States decides that Person X needs to become deceased, the principle of sovereignty presents no barriers, because either 1) State Y will consent to the U.S. use of force inside its borders, in which case the use of force presents no problem (except for Person X, of course), or 2) State Y will not consent to the U.S. use of force inside its borders, in which case -- by definition! -- the United States will deem State Y to be "unwilling or unable to suppress the threat" posed by Person X and the use of force again presents no problem.

Needless to say, this is a legal theory that more or less eviscerates traditional notions of sovereignty, and it has the potential to significantly destabilize the already shaky collective security regime created by the U.N. Charter.