Drawing on original interviews and extensive discourse analysis of primary and secondary sources, this article advances two central claims about the involvement of U.S. legal advisers in lethal and non-lethal targeting operations. First, while the role of legal advisers has no doubt become much more extensive over the past two decades, the article argues that legal advice in targeting operations is not nearly as ubiquitous as some have suggested. Second, it unpacks the context-specific contingencies of legal advice, arguing that the nature and extent to which advisers are ‘involved’ can be and frequently is determined by a series of operationally specific variables. The article and the argument revolve around a basic but under-appreciated distinction between two broad types of targeting: deliberate targeting, which is pre-planned, and dynamic targeting, which although containing planned elements is much more responsive to emerging threats in real-time. The article discusses how legal advisers were first incorporated into targeting operations, before showing in new empirical detail the key contingencies that continue to animate different kinds of targeting operations. The article also discusses the critical component of time, including the perceived lack of time for deliberation, and explores some of the consequences on decision-makers, troops on the ground, and civilians. The article concludes with a reflection on the largely unexplored moral and psychological toll of providing legal advice in an apparatus that in design and effect, however ‘humane’ it purports to be, ultimately kills and destroys.
Adapted from C Jones, The War Lawyers (Oxford University Press, 2021).
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