President Obama’s May 23 speech on counterterrorism policy at the National Defense University declared that the U.S. government prefers to capture terrorist suspects, where feasible, rather than kill them with drone strikes. The president (and the White House Fact Sheet on drone warfare policies that accompanied his speech) was addressing a widespread criticism made from the beginning of the Obama administration’s first term. Having announced in advance that Guantanamo was to be closed — and with Congress having cut off nearly completely the ability to bring detainees captured abroad into the United States (whether for detention or trial) — the Obama administration found itself with no politically acceptable location for detention. It therefore appeared to have a preference for killing terrorist adversaries with drone strikes.
The administration has been struggling for several years to articulate a response to this perception. It has been hampered by official secrecy around the drone programs, as well as by its own failure to challenge critics’ implicit assumption that there is a moral, perhaps even legal, obligation to seek capture over kill. The administration seems reluctant to explain clearly that those targeted are already in the legal category of being subject to lethal force as a first — not second or last — resort. When it comes to deciding whether to kill or to capture these people, having a place to detain them is legally and morally neither here nor there; they are in fact lawful targets for lethal force in an armed conflict, even without evaluation of imminent threat or feasibility of capture, without being given any warning or option of surrender, and regardless of the available options for detention or any other related considerations.
Criticism of the presumed kill-over-capture preference takes one form on the right and another on the left. For conservative critics — particularly former Bush administration officials such as John Yoo — the issues are threefold. One is the hypocrisy of what conservative critics see as a draconian use of force by an administration that is supposedly morally purer than its predecessor yet prefers kill over capture simply because it means not paying the political price of accepting the continued utility of Guantanamo. In this view, the Bush administration was more humanitarian because it sought to capture suspects rather than kill them outright, even if it meant detaining them indefinitely outside of the criminal justice system. A second issue is the assumed loss of valuable intelligence that live suspects could provide. At the same time, Yoo and other conservative critics also argue that it is a mistake for the administration to concede that it prefers capture over kill, because eschewing the full scope of targeting authority on political grounds weakens the legal claim that this is an armed conflict like any other.
For the domestic and international left, by contrast, the issue is that there is a moral obligation and indeed (drawing on human rights law) a legal requirement to seek capture over kill in a sort of parsimony of force. This line of reasoning has the potential to become a means of drawing the judiciary into reviewing lethal targeting decisions; if detainees captured abroad and held at Guantanamo are permitted habeas review of the decision to detain them, surely there is an even greater requirement of habeas or judicial review prior to the decision to kill, rather than capture, them?