Peter M. Cullen

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”