03/22/2024
First, Brennan’s speech intriguingly suggests that, at least in practice, U.S. use of force outside the “hot battlefield” may be even more restrictive than a traditional self-defense model would indicate. He states that U.S. efforts in such locations “are focused on those individuals who are a threat to the United States, whose removal would cause a significant – even if only temporary – disruption of the plans and capabilities of al-Qa’ida and its associated forces.” Although this sentence does not indicate that such a “focus” is legally necessary, it hints that the threat assessment is typically made at the individualized level, rather than with respect to the organization as a whole, such that the force is employed against those representatives of the organization posing the threat, rather than at “forces” of the organization more broadly. (Of course, the legal requirements of necessity and proportionality associated with the self-defense doctrine may in some cases require such discrimination, in any event, depending on the circumstances. Moreover, as a simple strategic matter, where a terrorist organization consists both of discrete elements, or factions, that pose a threat to a nation state, and those that don’t (because they’re directed at other objectives), the nation state is more likely to concentrate its force in self-defense against those parts of the group that pose the threat, and not to those that don’t. It’s certainly possible Brennan’s sentence about individuals is explained by these two considerations.)