The Role Of Targeted Killing In The Campaign Against Terror


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The Role of Targeted Killing in the Campaign against Terror

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The Role Of Targeted Killing In The Campaign Against Terror

  1. 1. TargeTed Killing The Role of Terror in the Campaign against By P e T e r m . C u l l e n 982d Combat Camera Company (Robert C. Brogan) T argeted killing1 is “the inten- proper implementation of a U.S. policy of tional slaying of a specific targeted killing are proposed. individual or group of individu- While the United States has not als undertaken with explicit explicitly acknowledged pursuing a policy government approval.”2 In recent years, of targeted killing, insights can be gleaned targeted killing as a tactic in the ongoing from published national security documents5 campaign against terrorism has generated and official statements6 that shed light on considerable controversy. Some commenta- U.S. willingness to employ targeted killing as tors view it as an indispensable tool and argue a tactic in the campaign against terror. This for its expanded use, while others question was most recently demonstrated in January its legality and claim that it is immoral and 2007 by the use of an Air Force AC–130 ultimately ineffective. The tactic of targeted Spectre gunship to target suspected al Qaeda killing is most closely associated with Israel’s terrorists in Somalia.7 Based on publicly campaign against the Second Palestinian available information, if the capture of Intifada.3 Since September 11, 2001, however, designated terrorists is not deemed feasible, the United States has consistently conducted the United States is prepared to use Central targeted killing operations against terrorist Intelligence Agency (CIA) or U.S. military DOD personnel. assets to target them in lethal operations.8 In Top: Soldier uses laser to identify target in Diyala This article examines the legality, addition to the recent operations in Somalia, River Valley region of Iraq morality, and potential efficacy of a U.S. targeted killings attributed9 to the United Above: Satellite image of al Qaeda training camp policy of targeted killing in its campaign States since 2001 have included attacks in the at Zhawar Kili Base, Afghanistan, after U.S. cruise against transnational terror.4 The conclusion Federally Administered Tribal Areas of Paki- missile attack is that, in spite of the genuine controversy stan and in Yemen.10 These actions resulted in surrounding this subject, a carefully circum- the deaths of numerous civilians,11 highlight- scribed policy of targeted killing can be a ing the grim reality of collateral damage that Colonel Peter M. Cullen, USA, is the Staff Judge legal, moral, and effective tool in a counter- adds greatly to the controversy surrounding Advocate, 101st Airborne Division (Air Assault) at terror campaign. Procedures to guide the targeted killing operations. Fort Campbell. 22 JFQ / issue 48, 1st quarter 2008 n d
  2. 2. CULLEN Authority to Use Force against Trans- killing, must comply with the law on the Legal Considerations national Terrorists (Jus ad Bellum). Article conduct of war. The primary sources of jus in There is broad divergence of opinion bello are found in the four Geneva Conven- in the extensive literature on the legality of 2(4) of the United Nations (UN) Charter targeted killing of transnational terrorists. outlaws the use of aggressive force by a tions of 1949 and their two Additional Proto- On one side, it is argued that targeted killings state in its international relations. One cols of 1977.15 Application of the law of war is constitute extrajudicial killings or assassina- recognized exception is a state’s inherent triggered if a state of “armed conflict” exists tions, which are prohibited under interna- right of self-defense as found in Article 51 between America and AQAM. Treaties do tional law. Proponents of this position argue of the UN Charter. This authorizes a state not define this term. It is broader than “war,” that terrorists are civilians, not combatants, to use military force to defend itself against which is limited to interstate conflict.16 Com- and should be dealt with using conventional an armed attack and the continuing threat mentators recommend looking to the nature, law enforcement methods rather than the of such an attack.13 The limitations on this intensity, and duration of the violence to make more permissive law of war. They contend right of self-defense are that the force used this determination.17 The level and frequency that terrorists can be killed only when there to defend against the attack must be both of actual or planned violence around the is no other way to prevent them from perpe- “necessary” and “proportionate.” Clearly, al globe between the United States or its allies trating an attack that endangers the lives of Qaeda’s actions on 9/11 constituted an armed and AQAM satisfy these criteria. Certainly, the U.S. Supreme Court in its recent Hamdan others. In all other circumstances, terrorists attack on America, and its subsequent actions v. Rumsfeld decision had little difficulty in should be arrested, prosecuted, and punished and statements confirm that it represents a for their crimes under the law. On the other continuing and serious threat to the United determining that U.S. military operations side, it is argued that terrorists are direct par- States against which America is entitled to against AQAM were properly characterized as ticipants in an armed conflict, so they may be defend itself through the use of force, specifi- an “armed conflict.”18 lawfully targeted. According to this position, cally the targeting of key al Qaeda personnel. a state threatened by terrorists may always act It has been argued that the right of self- the campaign against in self-defense and properly target terrorists defense only applies to interstate conflicts transnational terrorism provided the methods are in compliance with and not to a conflict with a transnational represents a new paradigm the law of war. terrorist organization such as al Qaeda and its That the topic of targeted killing can associated movements (AQAM).14 This textual with which international law generate such divergent opinions from interpretation of the UN Charter, however, has yet to come to terms informed commentators reveals that the is overcome by customary international law, campaign against transnational terrorism which recognizes a state’s inherent right of represents a new paradigm with which inter- self-defense. This permits the United States It is also necessary to determine the national law has yet to come to terms. Public to use force against nonstate actors such as type of conflict that exists between the international law, accustomed to regulating transnational terrorists. It is a right that has United States and AQAM; namely, is it an actions by states, is in uncharted territory not been challenged by the UN Security international or a noninternational armed when dealing with nonstate actors and their Council. Since AQAM are a continuing conflict? The answer determines which rules involvement in the changing face of war. The threat, the targeted killing of their key person- regulate the conduct of the conflict. With the ongoing U.S. campaign against terrorism does nel is a military necessity to prevent future exception of Common Article 3,19 the four not fit neatly into the existing system on the attacks. It is not designed to be punitive in Geneva Conventions only apply to interna- use of force in international law. Although we nature or serve as a reprisal. This tactic is tional armed conflicts. Recently, the U.S. Supreme Court in Hamdan20 concluded that are now years into the campaign against trans- also a proportionate, or reasonable, response national terror, legal commentators are still given the serious threat that AQAM pose to the armed conflict between the United States wrestling with how best to analyze the legal America. and AQAM was of a noninternational nature. issues generated when states use force against Article 2(4) of the UN Charter also This type of conflict is normally regulated transnational terrorists. requires the United States to respect the sov- by Additional Protocol II, but its provisions Given the current need to reassure ereignty of other nations. If America wishes are limited to internal conflict between a allies of its strong commitment to the to conduct a targeted killing on the sovereign government and nonstate actors within its rule of law, the United States must ensure territory of another nation, it must obtain territory. Clearly, this is not the case with that its policy on targeted killing is able to the permission of that government. In the the current U.S. conflict with AQAM, which withstand proper legal scrutiny and not be documented instances of U.S. targeted killing is taking place primarily on the territory of viewed as pushing the outer limits of autho- operations in Pakistan, Yemen, and Somalia, third countries such as Pakistan, Yemen, and rized state action.12 The case for targeted it has been reported that these nations granted Somalia. Since such a restrictive interpreta- killing must demonstrate that the United approval for these actions to be conducted tion would place the parties to the armed States is authorized to use force against within their borders. conflict between America and AQAM outside Legality of the Tactic of Targeted Killing jus in bello and create an unacceptable gap in terrorists in compliance with the law of conflict management, or jus ad bellum, and (Jus in Bello). Although the United States is the law’s coverage, it is necessary to expand that the manner in which targeted killings authorized to use force in self-defense against the definition of a noninternational conflict are executed complies with the law on the AQAM for as long as they remain a threat, to include one between a state and nonstate conduct of war, or jus in bello. each specific use of force, such as a targeted actors outside the state’s own territory.21 At a issue 48, 1st quarter 2008 / JFQ        23 ndupres
  3. 3. FORUM | The Role of Targeted Killing in the Campaign against Terror minimum, the provisions of Additional Pro- however, would exclude individuals from as a result of an attack innocent persons are tocol II relating to noninternational armed being targeted who provide purely political killed or wounded, a heavy burden rests on conflict that reflect standards of customary support to a terrorist organization. the state to show either that this could not rea- international law should regulate this type of Even where terrorists are properly sonably have been foreseen, or that even if it armed conflict,22 to include that between the designated as combatants under Additional could have been foreseen, the necessity of the United States and AQAM. Protocol II and therefore subject to targeting attack was great enough to justify the risk.”28 Jus in bello also contains a prohibition Article 13(2) of Additional Protocol II at will, the actual targeting must still meet incorporates the principle of distinction and the requirement of proportionality under of assassination in armed conflict.29 This is mandates that the civilian population and customary international law. The targeting often cited as a legal objection to the policy of targeted killing. Assassination in this context, individual civilians shall not be the object of operation will be held to violate international attack. An exception to this is found in Article law if it “may be expected to cause incidental however, is a term of art. It refers to the target- 13(3), which states that civilians forfeit protec- loss of civilian life, injury to civilians, damage ing of an individual using treachery or perfidy tion “for such time as they take a direct part to civilian objects, or a combination thereof, in time of war. There have been longstand- in hostilities.” The combatants in a noninter- which would be excessive in relation to ing prohibitions of such unlawful ruses that national armed conflict are the armed forces the concrete and direct military advantage undermine adherence to the law of war. Pro- of the state and, inter alia, “organized armed anticipated.”27 Although the principle of pro- vided the manner of a targeted killing does groups.” In the International Committee of portionality is easy to state, it is notoriously not involve treachery or perfidy, it is not an the Red Cross commentary on Additional difficult to apply. There is no mathematical illegal assassination under international law. Legality of Targeted Killing under Protocol II, it states that “[t]hose who belong formula to assist in determining whether the Domestic Law. Even if U.S. targeted killing of to the armed forces or armed groups may be successful targeting of a terrorist outweighs attacked at any time.”23 In the context of the the potential for collateral damage. The terrorists is legal under international law, it is armed conflict between the United States and question of proportionality must be resolved also necessary to determine its legality under AQAM, this means that active members of based on the facts known at the time of the U.S. domestic law. Some commentators have AQAM are combatants and may be lawfully attack and not on the actual outcome of the pointed to Executive Order 1233330 and its targeted at will.24 Given the status of AQAM operation. In reviewing the targeted killing prohibition on assassination. Although this operatives as combatants, the United States is operations attributed to the United States, it executive order regulating intelligence activi- under no obligation to attempt to arrest indi- is clear that many, if not most, have resulted ties does have legal effect, it does not apply to viduals before targeting them. This combatant in the deaths of noncombatants. What is less actions in time of war or to the Armed Forces. status remains in effect for the duration of the certain is how many such operations have Accordingly, it does not impact military oper- armed conflict unless the individual takes been aborted due to the risk they posed to ations that target terrorist operatives outside some action to renounce this status. noncombatants. David Kretzmer identified the United States.31 Even if these exceptions This analysis raises the question of how the dilemma facing decisionmakers: “When were not available, it can reasonably be argued active members of a terrorist organization are properly identified. Unlike combatants Soldiers are briefed prior to search for high-value target in international armed conflicts, they are individual in Adhamiyah district of Baghdad not required to display “a fixed distinctive sign recognizable at a distance.”25 Nor should their combatant status be limited to the time that they have a weapon in their hands. The answer lies in designating as combatants those members of the terrorist organization who have taken an active part in hostilities. Propo- nents of this position argue that this status is established if the individual takes a direct part in hostilities by planning, directing, or execut- ing attacks or “if there is other evidence of his or her combatant role.”26 Such evidence will be primarily derived from intelligence infor- mation, often supplemented by the statements and admissions of the individuals themselves. A difficult issue is whether an individual who provides purely financial support for terror- ist activities can be targeted as a combatant. Given the critical enabling role of financing in terrorist activities, such individuals should be viewed as having an active role in hostili- ties. The requirement for active participation, 982d Combat Camera Company (Jeffrey Alexander) 24 JFQ / issue 48, 1st quarter 2008 n d
  4. 4. CULLEN that the congressional resolution of September attractive option, it can often pose a grave risk Moral Considerations 18, 2001, authorizing the President to “use all Provided that targeted killing opera- to the people conducting the arrest opera- necessary and appropriate force . . . in order tions comply with the law of war, one can tion and endanger innocent noncombatants. to prevent any future acts of international make a convincing argument that they are Perhaps the best example was the attempt terrorism against the United States,”32 would consistent with the Just War tradition. By by U.S. personnel to arrest senior aides to suffice to address any domestic legal concerns their very nature, they seek to target those Mohammed Farrah Aideed, the Somali clan about a policy of targeted killing of AQAM terrorists who are intent on killing, maiming, leader in Mogadishu, in December 1993. This operatives. and injuring innocent civilians. Even if single operation ultimately led to the death of While Executive Order 12333 presents targeted killings are lawful from a technical 18 U.S. military personnel and hundreds of no legal impediment to targeted killings perspective, however, the question remains Somalis, both militia members and noncom- executed by the Armed Forces, it could whether a democracy should choose to batants.34 If targeted killing is removed as an impact such operations conducted by CIA pursue such a policy in its campaign against option and arrest is precluded, the remaining personnel, who are considered noncomba- terrorism. There are the inevitable concerns alternative—letting the terrorist continue tants under the law of war. Existing intel- that targeted killing operations often result to kill innocent civilians—is surely the least ligence oversight laws have established a in the death of innocent civilians, even if pro- attractive moral option. legal regime requiring Presidential findings portionality concerns are satisfied. It is also important to remember that and reporting to the intelligence committees These concerns highlight some of the fatalities associated with targeted killing before U.S. intelligence agencies can engage the dilemmas that terrorism presents any operations are unintended deaths that result in covert actions, to include targeted killing democratic society. It is part of the asym- from terrorists deliberately hiding and operations.33 metric advantage that terrorism enjoys. The operating among civilians. Significant moral A review of the U.S. policy of targeted alternatives to targeted killings, however, responsibility for civilian casualties during killing confirms that it has a valid basis can also carry significant downsides. While targeted killing operations thus rests with the under international and domestic law. The the apprehension of a terrorist may seem an terrorists themselves. Finally, it must always United States is legally justified in taking be remembered that the sole reason for such military action against AQAM as a matter operations is that the United States is acting of self-defense. AQAM are an organized in self-defense and seeking to protect its a review of the U.S. policy force and their operatives are combatants in citizens from the continuing threat of attack of targeted killing confirms a noninternational armed conflict who can by terrorists. that it has a valid basis under be targeted at will, provided such action is Targeted killing operations are a moral international and domestic law proportionate, does not involve perfidy or option provided that earnest efforts are taken treachery, and respects the sovereignty of to verify the accuracy of the intelligence on other nations. which they are based and that the operations AGM–114 Hellfire missile unloaded from MQ–1 Predator UAV after mission in Afghanistan 3d Communications Squadron (Jonathan Steffen) Download as computer wallpaper at issue 48, 1st quarter 2008 / JFQ        25 ndupres
  5. 5. FORUM | The Role of Targeted Killing in the Campaign against Terror are conducted in a manner to minimize produce significant benefits. This would be a against global terror. More time may be civilian casualties. Nevertheless, as a matter valid criticism if the United States consistently needed before it is possible to evaluate the of policy, they should be used sparingly and passed on opportunities to apprehend targets cumulative impact of the policy. It is clear, only when no reasonable alternative is avail- in favor of killing them. Yet there are numer- however, that targeted killing has at least able. They must be preventive in nature and ous instances where America has worked with contributed to a cessation of AQAM attacks on designed to forestall terrorist operations allies to apprehend key terrorists. The targeted U.S. territory. Outside of the Iraq and Afghani- rather than as measures of punishment or killings that have occurred were presumably stan theaters of operations, there have been reprisal. under circumstances where capture was not a no significant attacks on major U.S. interests viable option or presented unreasonable risk since September 11, 2001. to U.S. personnel. efficacy Is targeted killing likely to be an effec- The opposition to targeted killings Proposed Guidelines tive policy choice for the United States? Even increases dramatically when targeting errors The U.S. policy on targeted killing if it is legal and moral, if it is not effective occur and innocent noncombatants are killed. remains extremely controversial. It is a in combating terrorism, it should not be The answer, however, is not to stop targeted high risk, high payoff component in the employed. killings when they are justified, but to mini- campaign against terror. When success- Opponents of targeted killing chal- mize mistakes with more timely and reliable ful, it eliminates key adversaries, disrupts lenge the effectiveness of the policy on a intelligence and a careful process that reviews terrorist planning, and highlights U.S. number of grounds. The most frequent and approves all targeting missions. military prowess. When unsuccessful, it criticism is that successful targeted killings In spite of the likelihood that mistakes undermines U.S. credibility and severely are counterproductive in that they create will occur, the policy of targeted killing martyrs and generate a desire for retalia- remains an effective tactic in the campaign the persistent targeting of key tion. As such, they are viewed as motivating against terror. The persistent targeting of leaders significantly disrupts the terrorists and their base of support and key leaders significantly disrupts terrorist terrorist operations thereby intensifying the cycle of violence. operations. Although the impact on AQAM The counterargument is that terrorists such is somewhat diminished because of their as AQAM have demonstrated that they are decentralized structure, skilled leaders strains relations with other nations. As with already highly motivated and their terrorism in global terrorism are always difficult to any critical policy, it must be constantly needs no encouragement. replace, especially in the short term. Of equal reviewed, refined, and improved based on Another criticism is that the policy importance is the fact that it compels terror- lessons learned. The following guidelines is strategically flawed. The U.S.-led global ists to act defensively and devote a dispropor- propose limitations designed to ensure the campaign against terror is fundamentally a tionate amount of their time and energy to policy’s continued legality and make it more battle of ideas35 in which a belief in freedom, avoid being targeted instead of planning and acceptable to the world community without democracy, and the rule of law competes executing attacks. compromising its effectiveness.39 against terror, intolerance, and extremist There are no metrics Special Forces Soldier trains ideology. In this context, critics argue that to measure the effective- with MK12 sniper rifle targeted killings severely diminish global ness of targeted killing. support for the American position among Although the Israeli friends and allies. Unfortunately, targeted government remains killings have yet to be broadly accepted as a a strong proponent legitimate exercise of a state’s right to defend of the tactic in itself against terrorism. Criticism of U.S. its campaign targeted killings has come from respected against terror- entities such as the United Nations Special ism, its situ- Rapporteur, 36 Amnesty International, 37 and ation is so the U.S.-based Human Rights Watch.38 The different United States must counter this criticism by from doing more to promote the legitimacy of the America’s policy. America must articulate the policy’s that its legal and moral bases to international part- experience ners and the public at large and push for may not be a useful a formal updating of jus in bello to reflect reference. The a state’s legitimate right to defend itself policy of targeted against transnational terrorism. killing must be A third criticism is that in the campaign viewed as one against terror—which is so dependent on element of the intelligence—it does not make sense to kill the broader U.S. target when capture and interrogation would campaign Combat Camera Group Pacific (Eli J. Medellin) Download as computer wallpaper at 26 JFQ / issue 48, 1st quarter 2008 n d
  6. 6. CULLEN Establishing formal guidelines would also agency’s past association with illegal assas- cally without harm to noncombatants. As provide legal reassurance to those who are sinations.44 Such involvement produces a result, there is less tolerance for collateral assigned the difficult task of planning and skepticism in the international arena and damage of any kind. This creates an almost executing such operations. makes it more difficult to prevail in the impossible standard, as potential targets will Whom to Target. Although all active information war. The CIA has an important deliberately seek refuge in civilian areas to members of AQAM can legally be targeted, role in developing the actionable intelligence discourage attack. Who Approves Targeted Killing? Given political considerations favor limiting the that is key to success. The operations them- candidates for such operations to a short list40 selves, however, should be executed solely the sensitivity of such operations, approval of high value operatives. The list should be by military personnel.45 Another option is should be at the highest levels, preferably the reviewed and updated on a regular basis using to encourage the governments within whose President. This would help ensure a thorough the latest intelligence. vetting of each operation before it is submit- Generally, political leaders should ted for approval. The current system used in the availability of precision- not be targeted. This comes too close to approving covert intelligence operations47— political assassination and would encourage Presidential findings of fact and reporting to guided munitions is both a retaliatory attacks on U.S. or friendly nation the intelligence committees of Congress—is benefit and a hindrance political leaders. The distinction between a model worth following. The Presidential members of the military and political wings finding of the operation’s necessity (that is, of terrorist organizations may often be territory the terrorists are located to take the target poses a serious threat to the United very difficult to draw, but the focus should the lead in conducting these operations, States and arrest is not a viable option) would remain on those individuals who take a with appropriate assistance from the United have to be based on clear and convincing direct role in planning, financing, or execut- States.46 evidence using the most current intelligence. How to Conduct Targeted Killing Opera- ing terrorist operations. Once approved, the mission would be tasked tions. Targeted killing operations must always Targeted killings should not be con- to the U.S. military.48 ducted against U.S. citizens41 or persons comply with the law of war. They must be a The notification to Congress is an located within U.S. territory. Such opera- necessary and proportionate use of force in important check on the process and will tions in either circumstance would raise which every effort is made to minimize collat- help ensure that the policy maintains public political concerns and troublesome issues eral damage. The use of treachery or perfidy is support. Obviously, notification may be dif- related to domestic U.S. law.42 If a legitimate specifically prohibited. ficult in the case of time sensitive operations, terrorist target is located in another country, The availability of precision-guided but every effort should be made to inform the the United States must obtain authoriza- munitions is both a benefit and a hindrance. intelligence committees prior to the opera- tion from the host nation before launching While such munitions are extremely effec- tion or immediately thereafter. the operation. This avoids any violation of tive in targeted killing operations and help Some have even argued that there should sovereignty under Article 2(4) of the UN minimize collateral damage, they have be legislative authorization for any policy of Charter. exponentially increased expectations that targeted killing.49 While legally superfluous, Under What Circumstances to Authorize these operations can be conducted surgi- such legislation would ensure a public debate an Operation. As an exercise of the right of self-defense, each targeted killing operation AC–130 gunships were used to attack al should be conducted to avoid reasonably Qaeda suspects in Somalia near Kenyan imminent harm to U.S. or allied personnel border or interests.43 Given the continuing serious threat posed by AQAM, this requirement can be easily met. Targeted killing operations, however, should always be an option of last resort, where arrest is not feasible or the risk of casualties to U.S. personnel in apprehend- ing the target is too great. Who Conducts Operations. The analysis supporting the legality of targeted killings was premised on the fact that these operations are conducted by U.S. military personnel who qualify as combatants under the law of war. It is clear, however, that many U.S. targeted killing operations have been conducted by the CIA, whose personnel are noncombatants. Apart from the legal issues this creates, the use of CIA paramilitary personnel is troublesome because of the U.S. Air Force issue 48, 1st quarter 2008 / JFQ        27 ndupres
  7. 7. FORUM | The Role of Targeted Killing in the Campaign against Terror cites numerous newspaper reports that President of the policy and its implications and a politi- occur, responsibility rests with the terror- Bush signed an intelligence finding shortly after cal consensus in support of its execution.50 ists who operate out of civilian areas. All September 11 explicitly authorizing the targeting Others have argued that a Foreign Intel- this requires a more transparent policy on of designated al Qaeda personnel. ligence Surveillance Act–type court should targeted killing in which there is public Amnesty International, “Pakistan: U.S. 9 be established, whose review and approval confidence in its checks and balances to Involvement in Civilian Deaths,” January would be required before launching a tar- ensure proper targeting decisions are made. 31, 2006, accessed at <http://web.amnesty. geted killing operation.51 Establishing judicial If targeted killing operations are supported org/library/Index/ENGASA330022006>. oversight of what is essentially an operational by a comprehensive information operations Norman Printer, “The Use of Force against 10 decision with clear political overtones would strategy and professionally executed using Non-State Actors under International Law: An be excessive and set a precedent that might be timely and accurate intelligence, they will Analysis of the U.S. Predator Strike in Yemen,” problematic for other types of counterterror become an even more potent weapon against UCLA Journal of International Law and Foreign Affairs 8 (Fall/Winter 2003), 331, 335. operations in the future. transnational terrorism. JFQ Amnesty International, “Pakistan.” 11 Finally, the approval of the government U.S. Government practices concerning 12 in whose territory the terrorist is located extraordinary rendition, secret CIA-operated will be required. In the case of governments prisons, interrogation practices, and military that actively support terrorism, such as the Notes commissions have been criticized by other Taliban in Afghanistan in 2001, the United nations and international organizations. The A variety of terms are used to describe 1 States may fall back on the inherent right of United States needs strong international support this tactic: preventive killings, active self-defense, self-defense as the basis for acting without and cooperation to succeed in its global campaign extrajudicial killings, and interceptions. The term the authority of the host government. against terror. See Daniel Byman, “Do Targeted targeted killing has achieved the broadest accep- The National Security Advisor should Killings Work?” Foreign Affairs 85, no. 2 (March/ tance and is preferred in this essay because it does be responsible for overseeing the process April 2006), 108–109. not presume approval or disapproval of the tactic. Under the theory of active defense, “a state 13 and ensuring it is properly implemented. Steven R. David, Fatal Choices: Israel’s 2 may use past practices of terrorist groups and past To be effective, targeted killings must be Policy of Targeted Killing, Mideast Security and instances of aggression as evidence of a recurring interagency operations supported by all ele- Policy Studies No. 51 (Ramat Gan, Israel: The threat. In light of this threat, a state may invoke ments of national power. This would include Begin-Sadat Center for Strategic Studies, Septem- Article 51 to protect its interests if there is suf- ber 2002), 2. a review of each operation to ensure compli- ficient reason to believe that a pattern of aggres- According to B’Tselem, an Israeli human 3 ance with procedures and identify lessons sion exists.” See Howard A. Wachtel, “Targeting rights organization, between September 29, 2000, learned.52 Osama bin Laden: Examining the Legality of and January 31, 2007, Israeli security forces tar- The long-term success or failure of tar- Assassination as a Tool of U.S. Foreign Policy,” geted and killed 210 Palestinians. An additional geted killing as a component of the campaign Duke Law Journal 55 (2005), 677, 693. 128 civilian bystanders were also killed during against terror will depend on two capabilities Tom Ruys, “License to Kill? State-spon- 14 these operations. See < in which the United States has been deficient sored Assassination under International Law,” Statistics/Casualties.asp>. Working Paper 76 (Leuven: Institute for Interna- to date: first, obtaining actionable intelligence While this article focuses on the threat 4 tional Law, May 2005), 10, available from <www. to identify and locate targets; and second, posed to the United States by al Qaeda and its>. winning the information war to persuade associated movements, its conclusions apply Protocol Additional to the Geneva Con- 15 the domestic and international communities equally to other terrorist organizations that ventions of August 12, 1949, and relating to the present a similar danger. of the legality, morality, and effectiveness of Protection of Victims of International Armed See George W. Bush, National Strategy for 5 such operations. The United States is expend- Conflicts (Protocol 1), June 8, 1977 (Additional Combating Terrorism (Washington, DC: The ing considerable resources to improve its Protocol I); and Protocol Additional to the White House, September 5, 2006), 11; and Donald intelligence systems, but much more needs Geneva Conventions of August 12, 1949, and H. Rumsfeld, National Military Strategic Plan for to be done to enhance its information opera- relating to the Protection of Victims of Non- the War on Terrorism (Washington, DC: Depart- tions capabilities. International Armed Conflicts (Protocol II), ment of Defense, February 1, 2006), 20, 24. June 8, 1977 (Additional Protocol II). The United “Gen. Peter Pace, chairman of the Joint 6 States has not ratified either of these protocols, America cannot afford to take a passive Chiefs of Staff, told members of Congress on but much of their content is now considered part posture and allow critics to dominate the Friday [January 12, 2007] that the strike in of customary international law. debate and characterize the tactic as extraju- Somalia was executed under the Pentagon’s Kenneth Watkin, “Canada/United States 16 dicial killings or assassinations. The United authority to hunt and kill terrorism suspects Military Interoperability and Humanitarian around the globe, a power the White House gave States must aggressively explain the strong Law Issues: Land Mines, Terrorism, Military it shortly after the Sept. 11 attacks.” See Mark legal and moral bases for the policy and Objectives, and Targeted Killing,” Duke Journal Mazzetti, “Pentagon Sees Move in Somalia as assure the world community that the tactic of International and Comparative Law 15 (Spring/ Blueprint,” The New York Times, January 13, is invoked only when no reasonable alterna- Summer 2005), 281, 292. 2007, A6. tives are available to prevent the target from Thomas Michael McDonnell, “Assassina- 17 Ibid. 7 threatening the Nation and innocent civil- tion/Targeted Killing of Suspected Terrorists—A William C. Banks, The Predator (Syracuse: 8 ians. It must be clearly demonstrated that Violation of International Law?” December 2005, Syracuse University, 2003), available at <www. accessed at < all reasonable efforts are made to minimize>. This study jib/2005/12/assaainationtargeted_killing.html>. collateral damage and that, where it does 28 JFQ / issue 48, 1st quarter 2008 n d
  8. 8. CULLEN Hamdan v. Rumsfeld, 126 S.Ct. 2749, If an al Qaeda operative were physically Plots Involving Former Leaders,” November 20, 18 31 2795–2796 (2006). present within the territory of the United States, 1975, better known as the Church Committee See Geneva Convention for the Ameliora- this would become a matter for law enforcement Report. Banks and Raven-Hansen, 702. 19 tion of the Condition of the Wounded and Sick in and the criminal law of the United States. For a contrary opinion on the role of U.S. 45 Armed Forces in the Field art. 3, August 12, 1949, Public Law No. 107–40, 115 Stat. 224 (2001). military personnel in such operations, see Jen- 32 6 United States Treaty (U.S.T.) 3114, 75 United William C. Banks and Peter Raven-Hansen, nifer Kibbe, “The Rise of the Shadow Warriors,” 33 Foreign Affairs 83, no. 2 (March/April 2004), Nations Treaty Series (U.N.T.S.) 31; Geneva Con- “Targeted Killing and Assassination: The U.S. Legal Framework,” University of Richmond Law vention for the Amelioration of the Condition of 102. See also Richard A. Best, Jr., and Andrew Review 37 (March 2003), 667, 727–728. Feickert, Special Operations Forces (SOF) and Wounded, Sick, and Shipwrecked Members at Sea CIA Paramilitary Operations: Issues for Congress art. 3, August 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. Michael R. Gordon and Thomas L. Fried- 34 85; Geneva Convention Relative to the Treatment man, “Details of U.S. Raid in Somalia: Success (Washington, DC: Congressional Research So Near, a Loss So Deep,” The New York Times, of Prisoners of War art. 3, August 12, 1949, 6 Service, updated December 6, 2006), available at U.S.T. 3316, 75 U.N.T.S. 135; and Geneva Conven- October 25, 1993, A1. <>. tion Relative to the Treatment of Civilian Persons Bush, 7. An excellent example of such international 35 46 in Time of War art. 3, August 12, 1949, 6 U.S.T. United Nations Commission on Human cooperation was the joint Philippine-U.S. opera- 36 3516, 75 U.N.T.S. 287. Rights, Report of the Special Rapporteur, “Civil tion against the Abu Sayyaf terrorist group. Mark Hamdan, 2795–2796. Bowden, “Jihadists in Paradise,” The Atlantic, and Political Rights, Including the Questions of 20 David Kretzmer, “Targeted Killing of Sus- Disappearances and Summary Executions” (E/ March 2007, 54–75. 21 pected Terrorists: Extra-Judicial Executions or CN.4/2006/53/Add.1), March 27, 2006, 264. Banks and Raven-Hansen, 726–729. 47 Legitimate Means of Defense,” European Journal Amnesty International, “United States It is instructive to review the process fol- 37 48 of International Law 16 (2005), 171, 190. of America: An Extrajudicial Execution by the lowed by the Israeli government before authoriz- Ibid., 195. CIA?” May 18, 2005, accessed at <http://web. ing a targeted killing operation as described by 22 International Committee of the Red Cross, engamr510792005>. Laura Blumenfeld, “In Israel, a Divisive Struggle 23 over Targeted Killing,” The Washington Post, “Commentary on the Additional Protocols Kenneth Roth, “Drawing the Line: War 38 of 8 June 1977 to the Geneva Conventions of Rules and Law Enforcement Rules in the Fight August 27, 2006, A1. 12 August 1949,” paragraph 4789, quoted in against Terrorism,” Human Rights Watch, Heymann and Kayyem, 69. 49 Kretzmer, 198. World Report 2004, available at <http://hrw. Daniel Byman, “Targeted Killing, Ameri- 50 can Style,” The Los Angeles Times, January 20, Kretzmer, 198. Although designated as org/wr2k4/9.htm>. 24 combatants under Additional Protocol II, al These proposals draw on recommendations 2006, B13, argues that the United States would 39 Qaeda personnel enjoy none of the protections outlined in Philip Heymann and Juliette Kayyem, be well served by mirroring Israel and having afforded combatants, such as immunity from “Long-Term Legal Strategy Project for Preserving a robust public debate on the policy of targeted prosecution for combat actions or prisoner of Security and Democratic Freedoms in the War on killing. war status. See Orna Ben-Naftali and Keren R. Terrorism,” Terrorism Information Center, 2004, Avery Plaw, “Fighting Terror Ethically and 51 Michaeli, “We Must Not Make a Scarecrow of the available at < Legally: The Case of Targeting Terrorists,” (2006) Law: A Legal Analysis of the Israeli Policy of Tar- Term-Legal-Strategy.asp>. available at < geted Killings,” Cornell International Law Journal Press reports indicate that President Bush 2006/Plaw.pdf>. Plaw argues for a Federal Coun- 40 36 (Spring 2003), 233, 268. approved just such a list as far back as 2002: “The terterrorism Oversight Court (FCOC). See also Byman, Do Targeted Killings Work? 8. Article 4A(2)(b), Geneva Convention Bush administration has prepared a list of ter- 25 Relative to the Treatment of Prisoners of War, 12 rorist leaders the Central Intelligence Agency is On December 11, 2005, the Israeli Supreme 52 August 1949, 75 United Nations Treaty Series 135. authorized to kill, if capture is impractical and Court ruled on the legality of targeted killings in the Palestinian Territories in The Public Commit- Kretzmer, 199. civilian casualties can be minimized, senior mili- 26 tee Against Torture in Israel v. The Government This language is drawn from Article tary and intelligence officials said. The previously 27 of Israel, available at < 51(5)(b) of Additional Protocol I. Although this undisclosed list includes key al Qaeda leaders like applies to armed conflicts of an international Osama bin Laden and his chief deputy, Ayman files_ENG/02/690/007/a34/ 02007690.a34.htm>. nature, it accurately reflects the principle of pro- al-Zawahiri, as well as other principal figures The court instituted a requirement for an investi- portionality under customary international law. from al Qaeda and affiliated terrorist groups, gation of each targeted killing after the fact. This Kretzmer, 201. the officials said. The names of about two dozen would have the advantage of ensuring compliance 28 Article 23(b) of the Annex to Hague Con- terrorist leaders have recently been on the lethal with mandated procedures (especially the avoid- 29 vention IV of 1907 (Convention Respecting the force list, officials said.” See James Risen and ance of collateral damage), enabling accurate Laws and Customs of War on Land) stated that David Johnston, “Bush Has Widened Authority responses to questions about specific operations, of C.I.A. to Kill Terrorists,” The New York Times, it was forbidden “to kill or wound treacherously and institutionalizing the process of identifying individuals belonging to the hostile nation or December 15, 2002. lessons learned. Army.” Articles 37 and 44 of Additional Protocol There is evidence that at least one U.S. 41 I prohibit the perfidious killing or wounding citizen, Ahmed Hijazi, died during the targeted of enemies. These provisions are now viewed as killing of Abu Ali al-Harithi on November 1, part of customary international law. See Wachtel, 2002, in Yemen. Hijazi was an occupant in the 686–687. vehicle in which al-Harithi was traveling when it Executive Order No. 12333, “United States was struck by a Hellfire missile. See Printer, 335. 30 Intelligence Activities,” 3 Code of Federal Regula- Banks and Raven-Hansen, 674–679. 42 tions 200 (1982), reprinted in 50 U.S. Code, sec. Heymann and Kayyem, 67. 43 401 (2000). These incidents were fully documented in 44 Senate Report No. 94–465, “Alleged Assassination issue 48, 1st quarter 2008 / JFQ        29 ndupres