The Role of Targeted Killing in the Campaign Against Terror

The Role of Targeted Killing in the Campaign Against Terror
The U.S. Army Professional Writing Collection

Peter M. Cullen

Joint Force Quarterly

Issue 48, 1st Quarter 2008

Targeted killing1 is "the intentional slaying of a specific individual or group of individuals undertaken with explicit government approval."2 In recent years, targeted killing as a tactic in the ongoing campaign against terrorism has generated considerable controversy. Some commentators view it as an indispensable tool and argue for its expanded use, while others question its legality and claim that it is immoral and ultimately ineffective. The tactic of targeted killing is most closely associated with Israel's campaign against the Second Palestinian Intifada.3 Since September 11, 2001, however, the United States has consistently conducted targeted killing operations against terrorist personnel.

This article examines the legality, morality, and potential efficacy of a U.S. policy of targeted killing in its campaign against transnational terror.4 The conclusion is that, in spite of the genuine controversy surrounding this subject, a carefully circumscribed policy of targeted killing can be a legal, moral, and effective tool in a counterterror campaign. Procedures to guide the proper implementation of a U.S. policy of targeted killing are proposed.

While the United States has not explicitly acknowledged pursuing a policy of targeted killing, insights can be gleaned from published national security documents5 and official statements6 that shed light on U.S. willingness to employ targeted killing as a tactic in the campaign against terror. This was most recently demonstrated in January 2007 by the use of an Air Force AC-130 Spectre gunship to target suspected al Qaeda terrorists in Somalia.7 Based on publicly available information, if the capture of designated terrorists is not deemed feasible, the United States is prepared to use Central Intelligence Agency (CIA) or U.S. military assets to target them in lethal operations.8 In addition to the recent operations in Somalia, targeted killings attributed9 to the United States since 2001 have included attacks in the Federally Administered Tribal Areas of Pakistan and in Yemen.10 These actions resulted in the deaths of numerous civilians,11 highlighting the grim reality of collateral damage that adds greatly to the controversy surrounding targeted killing operations.

Legal Considerations
Legal Considerations

There is broad divergence of opinion in the extensive literature on the legality of targeted killing of transnational terrorists. On one side, it is argued that targeted killings constitute extrajudicial killings or assassinations, which are prohibited under international law. Proponents of this position argue that terrorists are civilians, not combatants, and should be dealt with using conventional law enforcement methods rather than the more permissive law of war. They contend that terrorists can be killed only when there is no other way to prevent them from perpetrating an attack that endangers the lives of others. In all other circumstances, terrorists should be arrested, prosecuted, and punished for their crimes under the law. On the other side, it is argued that terrorists are direct participants in an armed conflict, so they may be lawfully targeted. According to this position, a state threatened by terrorists may always act in self-defense and properly target terrorists provided the methods are in compliance with the law of war.

That the topic of targeted killing can generate such divergent opinions from informed commentators reveals that the campaign against transnational terrorism represents a new paradigm with which international law has yet to come to terms. Public international law, accustomed to regulating actions by states, is in uncharted territory when dealing with nonstate actors and their involvement in the changing face of war. The ongoing U.S. campaign against terrorism does not fit neatly into the existing system on the use of force in international law. Although we are now years into the campaign against transnational terror, legal commentators are still wrestling with how best to analyze the legal issues generated when states use force against transnational terrorists.

Given the current need to reassure allies of its strong commitment to the rule of law, the United States must ensure that its policy on targeted killing is able to withstand proper legal scrutiny and not be viewed as pushing the outer limits of authorized state action.12 The case for targeted killing must demonstrate that the United States is authorized to use force against terrorists in compliance with the law of conflict management, or jus ad bellum, and that the manner in which targeted killings are executed complies with the law on the conduct of war, or jus in bello.

Authority to Use Force against Transnational Terrorists (Jus ad Bellum). Article 2(4) of the United Nations (UN) Charter outlaws the use of aggressive force by a state in its international relations. One recognized exception is a state's inherent right of self-defense as found in Article 51 of the UN Charter. This authorizes a state to use military force to defend itself against an armed attack and the continuing threat of such an attack.13 The limitations on this right of self-defense are that the force used to defend against the attack must be both "necessary" and "proportionate." Clearly, al Qaeda's actions on 9/11 constituted an armed attack on America, and its subsequent actions and statements confirm that it represents a continuing and serious threat to the United States against which America is entitled to defend itself through the use of force, specifically the targeting of key al Qaeda personnel.

It has been argued that the right of self-defense only applies to interstate conflicts and not to a conflict with a transnational terrorist organization such as al Qaeda and its associated movements (AQAM).14 This textual interpretation of the UN Charter, however, is overcome by customary international law, which recognizes a state's inherent right of self-defense. This permits the United States to use force against nonstate actors such as transnational terrorists. It is a right that has not been challenged by the UN Security Council. Since AQAM are a continuing threat, the targeted killing of their key personnel is a military necessity to prevent future attacks. It is not designed to be punitive in nature or serve as a reprisal. This tactic is also a proportionate, or reasonable, response given the serious threat that AQAM pose to America.

Article 2(4) of the UN Charter also requires the United States to respect the sovereignty of other nations. If America wishes to conduct a targeted killing on the sovereign territory of another nation, it must obtain the permission of that government. In the documented instances of U.S. targeted killing operations in Pakistan, Yemen, and Somalia, it has been reported that these nations granted approval for these actions to be conducted within their borders.

Legality of the Tactic of Targeted Killing
Legality of the Tactic of Targeted Killing

(Jus in Bello). Although the United States is authorized to use force in self-defense against AQAM for as long as they remain a threat, each specific use of force, such as a targeted killing, must comply with the law on the conduct of war. The primary sources of jus in bello are found in the four Geneva Conventions of 1949 and their two Additional Protocols of 1977.15 Application of the law of war is triggered if a state of "armed conflict" exists between America and AQAM. Treaties do not define this term. It is broader than "war," which is limited to interstate conflict.16 Commentators recommend looking to the nature, intensity, and duration of the violence to make this determination.17 The level and frequency of actual or planned violence around the globe between the United States or its allies and AQAM satisfy these criteria. Certainly, the U.S. Supreme Court in its recent Hamdan v. Rumsfeld decision had little difficulty in determining that U.S. military operations against AQAM were properly characterized as an "armed conflict."18

It is also necessary to determine the type of conflict that exists between the United States and AQAM; namely, is it an international or a noninternational armed conflict? The answer determines which rules regulate the conduct of the conflict. With the exception of Common Article 3,19 the four Geneva Conventions only apply to international armed conflicts. Recently, the U.S. Supreme Court in Hamdan20 concluded that the armed conflict between the United States and AQAM was of a noninternational nature. This type of conflict is normally regulated by Additional Protocol II, but its provisions are limited to internal conflict between a government and nonstate actors within its territory. Clearly, this is not the case with the current U.S. conflict with AQAM, which is taking place primarily on the territory of third countries such as Pakistan, Yemen, and Somalia. Since such a restrictive interpretation would place the parties to the armed conflict between America and AQAM outside jus in bello and create an unacceptable gap in the law's coverage, it is necessary to expand the definition of a noninternational conflict to include one between a state and nonstate actors outside the state's own territory.21 At a minimum, the provisions of Additional Protocol II relating to noninternational armed conflict that reflect standards of customary international law should regulate this type of armed conflict,22 to include that between the United States and AQAM.

Article 13(2) of Additional Protocol II incorporates the principle of distinction and mandates that the civilian population and individual civilians shall not be the object of attack. An exception to this is found in Article 13(3), which states that civilians forfeit protection "for such time as they take a direct part in hostilities." The combatants in a noninternational armed conflict are the armed forces of the state and, inter alia, "organized armed groups." In the International Committee of the Red Cross commentary on Additional Protocol II, it states that "[t]hose who belong to the armed forces or armed groups may be attacked at any time."23 In the context of the armed conflict between the United States and AQAM, this means that active members of AQAM are combatants and may be lawfully targeted at will.24 Given the status of AQAM operatives as combatants, the United States is under no obligation to attempt to arrest individuals before targeting them. This combatant status remains in effect for the duration of the armed conflict unless the individual takes some action to renounce this status.

This analysis raises the question of how active members of a terrorist organization are properly identified. Unlike combatants in international armed conflicts, they are 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. Proponents of this position argue that this status is established if the individual takes a direct part in hostilities by planning, directing, or executing attacks or "if there is other evidence of his or her combatant role."26 Such evidence will be primarily derived from intelligence information, often supplemented by the statements and admissions of the individuals themselves. A difficult issue is whether an individual who provides purely financial support for terrorist 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 hostilities. The requirement for active participation, however, would exclude individuals from being targeted who provide purely political support to a terrorist organization.

Even where terrorists are properly designated as combatants under Additional Protocol II and therefore subject to targeting at will, the actual targeting must still meet the requirement of proportionality under customary international law. The targeting operation will be held to violate international law if it "may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated."27 Although the principle of proportionality is easy to state, it is notoriously difficult to apply. There is no mathematical formula to assist in determining whether the successful targeting of a terrorist outweighs the potential for collateral damage. The question of proportionality must be resolved based on the facts known at the time of the attack and not on the actual outcome of the operation. In reviewing the targeted killing operations attributed to the United States, it is clear that many, if not most, have resulted in the deaths of noncombatants. What is less certain is how many such operations have been aborted due to the risk they posed to noncombatants. David Kretzmer identified the dilemma facing decisionmakers: "When as a result of an attack innocent persons are killed or wounded, a heavy burden rests on the state to show either that this could not reasonably have been foreseen, or that even if it could have been foreseen, the necessity of the attack was great enough to justify the risk."28

Jus in bello also contains a prohibition of assassination in armed conflict.29 This is often cited as a legal objection to the policy of targeted killing. Assassination in this context, however, is a term of art. It refers to the targeting of an individual using treachery or perfidy in time of war. There have been longstanding prohibitions of such unlawful ruses that undermine adherence to the law of war. Provided the manner of a targeted killing does not involve treachery or perfidy, it is not an illegal assassination under international law.

Legality of Targeted Killing under Domestic Law. Even if U.S. targeted killing of terrorists is legal under international law, it is also necessary to determine its legality under U.S. domestic law. Some commentators have pointed to Executive Order 1233330 and its prohibition on assassination. Although this executive order regulating intelligence activities does have legal effect, it does not apply to actions in time of war or to the Armed Forces. Accordingly, it does not impact military operations that target terrorist operatives outside the United States.31 Even if these exceptions were not available, it can reasonably be argued that the congressional resolution of September 18, 2001, authorizing the President to "use all necessary and appropriate force . . . in order to prevent any future acts of international terrorism against the United States,"32 would suffice to address any domestic legal concerns about a policy of targeted killing of AQAM operatives.

While Executive Order 12333 presents no legal impediment to targeted killings executed by the Armed Forces, it could impact such operations conducted by CIA personnel, who are considered noncombatants under the law of war. Existing intelligence oversight laws have established a legal regime requiring Presidential findings and reporting to the intelligence committees before U.S. intelligence agencies can engage in covert actions, to include targeted killing operations.33

A review of the U.S. policy of targeted killing confirms that it has a valid basis under international and domestic law. The United States is legally justified in taking military action against AQAM as a matter of self-defense. AQAM are an organized force and their operatives are combatants in a noninternational armed conflict who can be targeted at will, provided such action is proportionate, does not involve perfidy or treachery, and respects the sovereignty of other nations.

Moral Considerations
Moral Considerations

Provided that targeted killing operations comply with the law of war, one can make a convincing argument that they are consistent with the Just War tradition. By their very nature, they seek to target those terrorists who are intent on killing, maiming, and injuring innocent civilians. Even if targeted killings are lawful from a technical perspective, however, the question remains whether a democracy should choose to pursue such a policy in its campaign against terrorism. There are the inevitable concerns that targeted killing operations often result in the death of innocent civilians, even if proportionality concerns are satisfied.

These concerns highlight some of the dilemmas that terrorism presents any democratic society. It is part of the asymmetric advantage that terrorism enjoys. The alternatives to targeted killings, however, can also carry significant downsides. While the apprehension of a terrorist may seem an attractive option, it can often pose a grave risk to the people conducting the arrest operation and endanger innocent noncombatants. Perhaps the best example was the attempt by U.S. personnel to arrest senior aides to Mohammed Farrah Aideed, the Somali clan leader in Mogadishu, in December 1993. This single operation ultimately led to the death of 18 U.S. military personnel and hundreds of Somalis, both militia members and noncombatants.34 If targeted killing is removed as an option and arrest is precluded, the remaining alternative-letting the terrorist continue to kill innocent civilians-is surely the least attractive moral option.

It is also important to remember that the fatalities associated with targeted killing operations are unintended deaths that result from terrorists deliberately hiding and operating among civilians. Significant moral responsibility for civilian casualties during targeted killing operations thus rests with the terrorists themselves. Finally, it must always be remembered that the sole reason for such operations is that the United States is acting in self-defense and seeking to protect its citizens from the continuing threat of attack by terrorists.

Targeted killing operations are a moral option provided that earnest efforts are taken to verify the accuracy of the intelligence on which they are based and that the operations are conducted in a manner to minimize civilian casualties. Nevertheless, as a matter of policy, they should be used sparingly and only when no reasonable alternative is available. They must be preventive in nature and designed to forestall terrorist operations rather than as measures of punishment or reprisal.

Is targeted killing likely to be an effective policy choice for the United States? Even if it is legal and moral, if it is not effective in combating terrorism, it should not be employed.

Opponents of targeted killing challenge the effectiveness of the policy on a number of grounds. The most frequent criticism is that successful targeted killings are counterproductive in that they create martyrs and generate a desire for retaliation. As such, they are viewed as motivating the terrorists and their base of support and thereby intensifying the cycle of violence. The counterargument is that terrorists such as AQAM have demonstrated that they are already highly motivated and their terrorism needs no encouragement.

Another criticism is that the policy is strategically flawed. The U.S.-led global campaign against terror is fundamentally a battle of ideas35 in which a belief in freedom, democracy, and the rule of law competes against terror, intolerance, and extremist ideology. In this context, critics argue that targeted killings severely diminish global support for the American position among friends and allies. Unfortunately, targeted killings have yet to be broadly accepted as a legitimate exercise of a state's right to defend itself against terrorism. Criticism of U.S. targeted killings has come from respected entities such as the United Nations Special Rapporteur,36 Amnesty International,37 and the U.S.-based Human Rights Watch.38 The United States must counter this criticism by doing more to promote the legitimacy of the policy. America must articulate the policy's legal and moral bases to international partners and the public at large and push for a formal updating of jus in bello to reflect a state's legitimate right to defend itself against transnational terrorism.

A third criticism is that in the campaign against terror-which is so dependent on intelligence-it does not make sense to kill the target when capture and interrogation would produce significant benefits. This would be a valid criticism if the United States consistently passed on opportunities to apprehend targets in favor of killing them. Yet there are numerous instances where America has worked with allies to apprehend key terrorists. The targeted killings that have occurred were presumably under circumstances where capture was not a viable option or presented unreasonable risk to U.S. personnel.

The opposition to targeted killings increases dramatically when targeting errors occur and innocent noncombatants are killed. The answer, however, is not to stop targeted killings when they are justified, but to minimize mistakes with more timely and reliable intelligence and a careful process that reviews and approves all targeting missions.

In spite of the likelihood that mistakes will occur, the policy of targeted killing remains an effective tactic in the campaign against terror. The persistent targeting of key leaders significantly disrupts terrorist operations. Although the impact on AQAM is somewhat diminished because of their decentralized structure, skilled leaders in global terrorism are always difficult to replace, especially in the short term. Of equal importance is the fact that it compels terrorists to act defensively and devote a disproportionate amount of their time and energy to avoid being targeted instead of planning and executing attacks.

There are no metrics to measure the effectiveness of targeted killing. Although the Israeli government remains a strong proponent of the tactic in its campaign against terrorism, its situation is so different from America's that its experience may not be a useful reference. The policy of targeted killing must be viewed as one element of the broader U.S. campaign against global terror. More time may be needed before it is possible to evaluate the cumulative impact of the policy. It is clear, however, that targeted killing has at least contributed to a cessation of AQAM attacks on U.S. territory. Outside of the Iraq and Afghanistan theaters of operations, there have been no significant attacks on major U.S. interests since September 11, 2001.

Proposed Guidelines
Proposed Guidelines

The U.S. policy on targeted killing remains extremely controversial. It is a high risk, high payoff component in the campaign against terror. When successful, it eliminates key adversaries, disrupts terrorist planning, and highlights U.S. military prowess. When unsuccessful, it undermines U.S. credibility and severely the persistent targeting of key leaders significantly disrupts terrorist operations strains relations with other nations. As with any critical policy, it must be constantly reviewed, refined, and improved based on lessons learned. The following guidelines propose limitations designed to ensure the policy's continued legality and make it more acceptable to the world community without compromising its effectiveness.39 Establishing formal guidelines would also provide legal reassurance to those who are assigned the difficult task of planning and executing such operations.

Whom to Target. Although all active members of AQAM can legally be targeted, political considerations favor limiting the candidates for such operations to a short list40 of high value operatives. The list should be reviewed and updated on a regular basis using the latest intelligence.

Generally, political leaders should not be targeted. This comes too close to political assassination and would encourage retaliatory attacks on U.S. or friendly nation political leaders. The distinction between members of the military and political wings of terrorist organizations may often be very difficult to draw, but the focus should remain on those individuals who take a direct role in planning, financing, or executing terrorist operations.

Targeted killings should not be conducted against U.S. citizens41 or persons located within U.S. territory. Such operations in either circumstance would raise political concerns and troublesome issues related to domestic U.S. law.42 If a legitimate terrorist target is located in another country, the United States must obtain authorization from the host nation before launching the operation. This avoids any violation of sovereignty under Article 2(4) of the UN Charter.

Under What Circumstances to Authorize an Operation. As an exercise of the right of self-defense, each targeted killing operation should be conducted to avoid reasonably imminent harm to U.S. or allied personnel 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 apprehending 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 agency's past association with illegal assassinations.44 Such involvement produces skepticism in the international arena and makes it more difficult to prevail in the information war. The CIA has an important role in developing the actionable intelligence that is key to success. The operations themselves, however, should be executed solely by military personnel.45 Another option is to encourage the governments within whose territory the terrorists are located to take the lead in conducting these operations, with appropriate assistance from the United States.46

How to Conduct Targeted Killing Operations. Targeted killing operations must always comply with the law of war. They must be a necessary and proportionate use of force in which every effort is made to minimize collateral damage. The use of treachery or perfidy is specifically prohibited.

The availability of precision-guided munitions is both a benefit and a hindrance. While such munitions are extremely effective in targeted killing operations and help minimize collateral damage, they have exponentially increased expectations that these operations can be conducted surgically without harm to noncombatants. As a result, there is less tolerance for collateral damage of any kind. This creates an almost impossible standard, as potential targets will deliberately seek refuge in civilian areas to discourage attack.

Who Approves Targeted Killing? Given the sensitivity of such operations, approval should be at the highest levels, preferably the President. This would help ensure a thorough vetting of each operation before it is submitted for approval. The current system used in approving covert intelligence operations47- Presidential findings of fact and reporting to the intelligence committees of Congress-is a model worth following. The Presidential finding of the operation's necessity (that is, the target poses a serious threat to the United States and arrest is not a viable option) would have to be based on clear and convincing evidence using the most current intelligence. Once approved, the mission would be tasked to the U.S. military.48

The notification to Congress is an important check on the process and will help ensure that the policy maintains public support. Obviously, notification may be difficult in the case of time sensitive operations, but every effort should be made to inform the intelligence committees prior to the operation or immediately thereafter.

Some have even argued that there should be legislative authorization for any policy of targeted killing.49 While legally superfluous, such legislation would ensure a public debate of the policy and its implications and a political consensus in support of its execution.50

Others have argued that a Foreign Intelligence Surveillance Act-type court should be established, whose review and approval would be required before launching a targeted killing operation.51 Establishing judicial oversight of what is essentially an operational decision with clear political overtones would be excessive and set a precedent that might be problematic for other types of counterterror operations in the future.

Finally, the approval of the government in whose territory the terrorist is located will be required. In the case of governments that actively support terrorism, such as the Taliban in Afghanistan in 2001, the United States may fall back on the inherent right of self-defense as the basis for acting without the authority of the host government.

The National Security Advisor should be responsible for overseeing the process and ensuring it is properly implemented. To be effective, targeted killings must be interagency operations supported by all elements of national power. This would include a review of each operation to ensure compliance with procedures and identify lessons learned.52

The long-term success or failure of targeted killing as a component of the campaign against terror will depend on two capabilities in which the United States has been deficient to date: first, obtaining actionable intelligence to identify and locate targets; and second, winning the information war to persuade the domestic and international communities of the legality, morality, and effectiveness of such operations. The United States is expending considerable resources to improve its intelligence systems, but much more needs to be done to enhance its information operations capabilities.

America cannot afford to take a passive posture and allow critics to dominate the debate and characterize the tactic as extrajudicial killings or assassinations. The United States must aggressively explain the strong legal and moral bases for the policy and assure the world community that the tactic is invoked only when no reasonable alternatives are available to prevent the target from threatening the Nation and innocent civilians. It must be clearly demonstrated that all reasonable efforts are made to minimize collateral damage and that, where it does occur, responsibility rests with the terrorists who operate out of civilian areas. All this requires a more transparent policy on targeted killing in which there is public confidence in its checks and balances to ensure proper targeting decisions are made. If targeted killing operations are supported by a comprehensive information operations strategy and professionally executed using timely and accurate intelligence, they will become an even more potent weapon against transnational terrorism.