McGuireWoods partner Michael Adams and Ryan Goodman, the co-editor-in-chief of the widely read Just Security blog on national security and policy, wrote an article examining legal considerations inherent in targeting terrorists outside active war zones.
The Feb. 15 article noted that the White House reportedly has retired previous policy constraints on lethal strikes against terror targets. These policy constraints had set standards of “near certainty” to ensure enemy combatants are engaged and civilian casualties are minimized – standards that some had criticized as being overly burdensome on military forces and exceeding the United States’ legal obligations.
However, Adams and Goodman explained that, in some contexts, the law of armed conflict may still require near certainty that the proper target is the object of a strike and damage to innocent parties is minimal. They emphasized that international law requires reasonableness in targeting decisions and offered that the standards applicable to particular circumstances can be viewed as a sliding scale. They observed, “If the White House allows the Defense Department to peel back the ‘near certainty’ standard, it will be the responsibility of U.S. forces to once again maintain the baseline imposed by international law.”
Adams was a national security advisor and point person on cyber threats and counter-terrorism operations during 25 years of service in the U.S. Navy before joining McGuireWoods in February 2017. He was deputy general counsel to two Chairmen of the Joint Chiefs of Staff at the Pentagon and currently chairs McGuirewoods’ data privacy and security practice’s financial services and defense and government contracts teams.