The rationale behind the most controversial tactic in America’s global war on terrorism—targeted killing of “high value” individuals—goes back far in history, all the way to the Talmud: “If someone comes to kill you, rise up and kill him first.”
Targeted killing has yet to be formally defined in international law, but the UN Security Council has proffered a sound definition: “The intentional, premeditated, and deliberate use of lethal force, by states or their agents acting under color of law, or by an organized armed group in armed conflict, against a specific individual who is not in the physical custody of the perpetrator.”
Only since the early 2000s has targeted killing (TK) emerged from the shadows of the “covert action” world to become a major policy issue for governments, human rights watch groups, international lawyers, and of course, the press. The first prominent TK operation in American history took place in 1943, when American fighter pilots took off from Guadalcanal with the express intention of shooting down an aircraft they knew to be transporting Admiral Isoroku Yamamoto, the architect of the Pearl Harbor attack. The mission was successful.
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In Vietnam, CIA and Special Forces operatives systematically eliminated high ranking Vietcong officers and political cadres in the highly effective (and still controversial) Phoenix Program.
Israel’s CIA—the Mossad—began a clandestine program to eliminate the Palestinian militants who had killed 11 of their athletes at the 1972 Munich Olympics, and in 2000, Israel became the first nation to make public a targeted killing program against terrorists who threatened the safety of its citizens. That program, still very much in effect today, is the subject of a superb new book detailing how these operations have been conceived, planned and executed. Rise and Kill First, by the noted Israeli journalist Ronen Bergman, also discusses in very knowledgeable and balanced terms the clash between the rights of a democracy to defend itself and the rights of targeted individuals to due process under the law.
Rise and Kill First shines an oblique light on how these extremely complex operations are carried out by the United States, for as Bergman points out, “The United States has taken the intelligence-gathering and assassination techniques developed in Israel as a model, and after 9/11 and President Bush’s decision to launch a campaign of targeted killing against Al Qaeda, it transplanted some of these methods into its own intelligence and war-on-terror systems.”
Ironically the Bush administration initially opposed the Israeli TK program. Then came 9/11, and close on its heels, Congress passed the Authority to Use Military Force (AUMF) statute, which granted the president the right “to use all necessary and appropriate force” in pursuit of the al Qaeda perpetrators of 9/11, and affiliated groups. Bush, Obama, and Trump have all interpreted that statute very broadly as a justification for counterterrorism operations in many countries, sometimes with the permission of the host government, sometimes not.
Washington has also anchored its defense of its killing program on the UN Charter’s article 51, granting every nation the right of self-defense. Although agents of the U.S. government have been prohibited by executive order from conducting assassinations in peacetime since 1976, the government has claimed, and continues to claim, that all targeted killing operations—by drones, kill/capture raids by commandos, and cruise missile strikes—are carried out against enemy combatants in an armed conflict.
Among military professionals and independent monitoring groups of all kinds, there is widespread consensus that the number of American targeted killing operations has been rising steadily for the last decade. It’s impossible to get accurate figures on either the number of operations, or the numbers of combatants and innocent civilians killed, because the strikes in the war zones of Afghanistan, Syria, and Iraq are covert and highly classified. Still, quite a number of studies and government statements support the claim that such operations are launched more and more frequently. The New American Foundation, for instance, claims that the Obama administration launched four times the number of drone strikes in its first two years than the Bush administration launched over its eight-year tenure.
In July 2016 the Obama administration released an executive order outlining policies to minimize civilian casualties in such strikes, as well as figures for drone strikes outside of the active war zones, i.e., in Somalia, Libya, Yemen, and the tribal region of Pakistan. Between 2009 and mid-2016, 273 strikes had killed between 2,272 and 2,581 combatants and between 64 and 116 civilians. The civilian casualty figures were greeted with widespread skepticism by human rights groups and the press.
According to NBC News, the Trump administration in spring 2017 declared parts of both Yemen and Somalia to be war zones, meaning that military commanders no longer had to guarantee there was a “near certainty” that no civilians would be harmed in a prospective strike before requesting approval to execute from the top general of U.S. Central Command.
The most glittering success of the entire American TK program, of course, was the May 2, 2011 raid by SEAL Team 6 that dispensed with Osama bin Laden. But there’s no denying that despite extremely methodical planning based on intelligence gathered by state of the art surveillance systems, some of these strikes have missed their target and resulted in considerable collateral damage.
In spring 2003, U.S. missiles struck a Baghdad restaurant with a view to liquidating Saddam Hussein and two of his sons. The targets had left the premises. Fourteen civilians were killed. Several operations have been launched over the last decade to bump off bin Laden’s successor, Ayman al-Zawahiri; all have come up short, and several have produced significant civilian casualties. London’s Bureau of Investigative Journalism estimates civilian casualties from U.S. strikes in the Pakistani tribal region alone between 2004 and September 2017 to be between 424 and 969.
The most strident critics of the TK program have an unfortunate habit of conflating targeted killing with assassination—a term freighted with pejorative connotations—but the two terms are not synonyms. Assassination is generally understood as an extralegal killing of a political figure of some significance. According to Gary Solis, a professor of law at Georgetown and a former U.S. Marine officer, targeted killings only take place within a military or paramilitary context; the decision to kill is made by senior political leaders after a rigorous review process; the targeted individual has taken up arms, and there is no reasonable possibility of capture.
Even granting this distinction, many human rights groups and international law authorities see targeted killings as uncomfortably close to assassination, and they question the legality—and moral legitimacy—of the process by which the United States selects its targets. The lack of independent judicial oversight of a process managed exclusively by the executive branch, the DOD, and the CIA is a big problem for many critics. So is the lack of transparency about the process.
According to Yale Law professor Harold Koh, the lawfulness of targeting killing breaks down around three questions:
- Whether the government’s action is consistent with domestic and international law.
- Whether the rights of a targeted individual have been adequately considered under domestic and international law.
- Whether the sovereignty of the country where the killing took place has been adequately considered in the review process.
Thus far U.S. courts have been reluctant to impinge on the government’s administration of the program, or to force it to issue a public explanation of how the process works. When the ACLU in 2010 challenged the right of the government to target American citizen Anwar al-Awlaki, described by intelligence officials as “the Bin Laden” of the internet, New York federal district court Judge John Bates dismissed the case on procedural and jurisdictional grounds. Nine months later, Awlaki was killed in a drone strike.
In 2014, after four years of legal wrangling by the ACLU and The New York Times, the federal court of appeals in New York ordered the release of a single memo outlining the legal basis for the program. The Justice Department released a heavily redacted document, but the next year, the same court refused to order the government to release nine other memos requested by The New York Times on targeted killing prepared by the Justice Department’s Office of Legal Counsel.
The U.S. Supreme Court has yet to rule on the legality of the program, but Israel’s Supreme Court in 2006 recognized targeted killing a legitimate means of warfare, “subject to stringent controls and balances.”
The most common charges leveled against the American program by human rights watch groups and the press is that too many of these “precision” strikes fail, and too many innocent lives are lost—all too often, children’s lives. Sources disagree widely over the extent of the “collateral damage” from TK missions. For obvious reasons the figures are highly politicized. What President Obama said in 2013 still holds true today: “There is a wide gap between U.S. assessments of such casualties and nongovernment reports.”
Obama went on to articulate what might be called a common sense justification for continuing to refine American capabilities to decapitate terrorist networks: “The terrorists we are after target civilians, and the death toll from their acts of terrorism against Muslims [alone] dwarfs any estimate of civilian casualties from drone strikes.”
Defenders of the program are quick to point out, too, that conventional military means of eliminating high value targets are without question more costly in blood and treasure than TK strikes for combatants and civilians alike.
Some critics challenge the efficacy of the program. They question whether such strikes really degrade the capabilities of terror networks. It’s even said that the outrage produced by TK attacks does little more than fuel the fires of Islamic radicalism and lead to the promotion of younger, more dynamic men to the upper ranks. One sees this claim made frequently in the (rapidly growing) literature, but it seems highly conjectural at best.
There is widespread consensus among military analysts and scholars, for instance, that since Israel’s targeted killing program went into high gear, Hamas’ ability to mount complicated terrorist attacks has diminished. Osama bin Laden himself expressed deep concern to subordinates over America’s efforts to decapitate the al Qaeda hierarchy.
Whatever their point of view, legal scholars, ethicists, human rights groups, and the media perform both a valuable and necessary service in challenging the Trump administration to provide American citizens—indeed, citizens of the world—with more information about what these strikes actually accomplish, and the processes and procedures by which targets are determined. The genie is out of the bottle, and it would be naïve to believe that American courts or the pressing weight of popular opinion are going to bring the program to an end. Professional soldiers and counterterrorism analysts alike confirm that targeted killing is among the most effective tactics in the Western democracies’ tool kit. Moreover, technological improvements in intelligence gathering and munitions are sure to further limit collateral damage in future operations.
Widespread acceptance of the U.S. targeted killing as a legitimate form of warfare depends on the willingness of the American government to be much more transparent than it has been up this point on the principles for target selection, and on self-imposed restraints on use of such strikes. Daniel Byman of Georgetown University, one of the leading academic authorities on the topic, wisely suggests that some sort of independent special court should be established to review the government’s case for each target selected. It wouldn’t be a bad idea, either, for an independent board of retired military and international law experts to conduct a study of the U.S. targeted killing program this far, and make at least part of its findings public.
Scholars Gabrielle Blum and Philip Heyman make an equally sound suggestion in Laws, Outlaws, and Terrorists when they write, “The aggression of the targeted killing tactic mandates its measured use only in the most urgent and necessary cases. The government’s intent should be to tame violence, not exacerbate it. Where alternatives exist, they should be pursued, not just as a matter of law but also as a matter of sound policy.”
