Targeted killing: when proportionality gets all out of proportion.

• Author: Guiora, Amos N.
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

Targeted killing sits at the intersection of law, morality, strategy, and policy. For the very reasons that lawful and effective targeted killing enables the state to engage in its care function of self-defense and defense of its nationals, I am a proponent of targeted killing. However, my support for targeted killing is conditioned upon it being subject to rigorous standards, criteria, and guidelines. At present, new conceptions of threat and new technological capabilities are drastically affecting the implementation of targeted killing and the application of core legal and moral principles. High-level decision makers have begun to seemingly place a disproportionate level of importance on tactical and strategic gain over respect for a narrow definition of criteria-based legal and moral framework. Nonetheless, an effective targeted killing provides the state with significant advantages in the context of counterterrorism. Rather than relying on the executive branch making decisions in a "closed world" devoid of oversight and review, the intelligence information justifying the proposed action must be submitted to a court that would ascertain the information's admissibility. The process of preparing and submitting available intelligence information to a court would significantly contribute to minimizing operational error that otherwise would occur.

CONTENTS I. INTRODUCTION II. FUNDAMENTAL CONCEPTS A. Morality in Armed Conflict B. Nature of Conflict C. Role of Modern Technology III. THE DECISION-MAKING PROCESS A. The Importance of Process B. Who Are Legitimate Targets? C. Is the Intelligence Actionable? D. Is the Response Proportional? IV. THE DRONE POLICY V. CONCLUSION I. INTRODUCTION

Targeted killing sits at the intersection of law, morality, strategy, and policy. For the very reasons that lawful and effective targeted killing enables the state to engage in its core function of self-defense and defense of its nationals, I am a proponent of targeted killing. However, my support for targeted killing is conditioned upon it being subject to rigorous standards, criteria, and guidelines. My advocacy of both targeted killing and criteria-based decision-making rests largely on my twenty years of experience with a "seat at the table" of operational counterterrorism. The dangers inherent in the use of state power are enormous. On the opposite side of the equation, however, is the terrible cost of terrorism because terrorists, in deliberately targeting innocent civilians, disregard both legality and morality.

At present, new conceptions of threat and new technological capabilities are drastically affecting the implementation of targeted killing and the application of core legal and moral principles. High-level decision makers have begun to seemingly place a disproportionate level of importance on tactical and strategic gain over respect for a narrow definition of criteria-based legal and moral framework. (1) Given the realities of collateral damage and other inevitable consequences, such an emphasis on tactical and strategic gain is troublesome. Nonetheless, an effective targeted killing provides the nation state with significant advantages in the context of counterterrorism.

The fine line that separates the competing needs for both an effective counterterrorism strategy and a governing legal and moral framework is paper thin. While success is undoubtedly seductive, decision makers must consider the ramifications of a targeted killing gone awry. The seemingly surgical precision of a drone attack is so powerful and alluring that it has the potential to blind us from its powerful and compelling downsides--and from the legal and moral failures that it may well spawn.

In the current environment, the international principle of proportionality is out of proportion. Expanded notions of imminence, flexibly and broadly defined, married with increasing reliance on sleek new technology, lie at the heart of re-conceptions of proportionality capacious enough to encompass nearly all targeting decisions.

This essay, the foundation of which is my experience in operational counterterrorism, is intended to be a clarion call proposing the United States undertake, immediately and intensely, a significant re-appraisal of its counterterrorism policy. These words, written in August 2012, were unfortunately prescient: when I penned them, it was not my expectation U.S. drone policy would take on a deeply troubling and problematic nature.

Unfortunately, the recently released Department of Justice white paper (2) regarding the Obama Administration's drone policy raises profound concerns regarding its legality and morality. The White Paper:

[S]ets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa'ida or an associated force of al-Qa'ida--that is, an al-Qa'ida leader actively engaged in planning operations to kill Americans. (3) According to the white paper, the United States would be able to use lethal force against a U.S. citizen, who is located outside the United States and is an operational leader continually planning attacks against U.S. persons and interests, in at least when:

(1) an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture operation is infeasible--and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. (4) However, the White Paper dramatically broadens the definition of legitimate target:

[T]he condition that an operational leader present an "imminent" threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future. (5) Experience tragically shows that when a "legitimate" target is broadly defined, significant collateral damage is inevitable. Needless to say, the grave dangers emanating from the White Paper raise deeply disturbing questions regarding the policy's legality, morality and effectiveness.

The DOJ white paper both harkens back to the Bush Administration's unitary executive theory and to the infamous Bybee Memo (6) that established the Bush Administration's torture regime. There is a powerful and disturbing link between the Obama Administration's drone policy and the Bush Administration's interrogation policy. When writing a previous book, Constitutional Limits of Coercive Interrogation, (7) I met with U.S. interrogators based in Iraq. Their most striking request was that guidelines and criteria regarding limits of interrogation be clearly articulated in detailed written instructions. Their "demand" was predicated on a deeply held conviction (with which I agreed) that the Bybee Memo established a paradigm best described as "by all means necessary" and grave concern their command structure would demand interrogation measures in violation of domestic and international law.

Re-articulated: experienced interrogators were convinced superiors, in accordance with the Bybee Memo, would demand they violate the law. By analogy, it is troubling, albeit reasonable, to presuppose the White Paper will result in actions that violate domestic and international law. Not because commanders are inherently prone to nor particularly relish committing crimes; nevertheless, the White Paper has created an unduly (and unfair) complicated dilemma for commanders and decision makers. The combination of defining legitimate target as "senior, AI-Qaeda operational leader" including U.S. citizens and an extraordinarily broad imminence definition creates a targeted killing paradigm akin to the interrogation excesses that followed in the wake of the Bybee Memo.

Given the excessive paradigm the white paper articulates one can only recall the ageless and immortal words of Justice Robert Jackson in Youngstown Sheet & Tube Co. v. Sawyer. (8) While different context and distinct circumstances, Justice Jackson's powerful warning regarding the unfettered executive ring as loudly today as they did when penned. Perhaps, with all due deference both to Justice Jackson and the facts before the Supreme Court in Youngstown, the words must be heard louder today. The reason: the paradigm established by the DOJ white paper facilitates the potential harm to human life--including U.S. citizens--by an unfettered executive determining whether an individual is a legitimate target devoid of process and review.

The unitary executive theory aggressively articulated, and implemented, by the Bush Administration has been adopted in toto by the Obama Administration. While the executive clearly prefers to operate in a vacuum, the question whether that most effectively ensures effective operational counterterrorism is an open question. The advantage of institutionalized, process-based input into executive action prior to decision implementation is worthy of discussion in operational counterterrorism.

The solution to this search for an actionable guideline is the strict scrutiny standard. What is strict scrutiny, and how is it to be implemented in the context of operational counterterrorism? Why is there a need, if at all, for an additional standard articulating self-defense? The strict scrutiny standard would enable operational engagement of a non-state actor predicated on intelligence information that would meet admissibility standards akin to a court of law. The strict scrutiny test seeks to strike a balance enabling the state to act sooner but subject to significant restrictions.

The ability to act sooner is limited, however, by the requirement that intelligence information must be reliable...