I agree with what you state but in my opinion we are getting back to a fundamental debate that either we use the Rules of Law or the Laws of War in the War on Terrorism. Recognizing that neither is a perfect fit, you have to make a call and once you make that call you adapt that system (work to change either the Rules of Law or the Laws of War) to the War on Terrorism. To a certain extent, I think we saw this immediately after 9/11 in the Bush administration. They picked the Laws of War and then extended the Executive Branch powers in an attempt to cover some of those gaps. Of course the SCOTUS, pulled those powers back or limited them in a couple of SCOTUS Cases (e.g. - Whoever-vs- Rumsfeld). Good examples of the Executive and Judicial Branch working in contention … like it should. I have also seen arguments that the Bush administration was not consistent with this approach and agree. Of course then we have Congress and our two party system. Picking one of two non-perfect systems means the opposition party will always rail against the picked system on the basis of the other. For example, when a drone pilot kills a bad guy and “others” a case for murder (elements of proof) can be made using the Rules of Law. Intent is certainly there along with a plan and bodies. Under the Laws of War both the target and the collateral damage can be justified under the principle of military necessity.