Targeted Killing and Accountability
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Targeted Killing and Accountability GREGORY S. MCNEAL* This Article is a comprehensive examination of the United States’ practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The Article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mecha- nisms associated with the targeted killing process. The Article (1) provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill lists and extending through the execution of targeted strikes, and (2) provides a robust analytical framework for assessing the accountability mechanisms associated with those processes. The Article begins by reporting the results of a case study that reviewed hundreds of pages of military policy memoranda, disclosures of government policies through Freedom of Information Act (FOIA) requests by NGOs, filings in court documents, public statements by military and intelligence officials, and descriptive accounts reported by the press and depicted in nonfiction books. These findings were supplemented by observing and reviewing aspects of the official training for individuals involved in targeted killings and by conducting confidential interviews with members of the military, special operations, and intelligence community involved in the targeted killing process. These research techniques resulted in a richly detailed depiction of the targeted killing process, the first of its kind to appear in any single publication. After explaining how targeted killings are conducted, the Article shifts from the descriptive to the normative, setting out an analytical framework drawn from the governance literature that assesses accountability along two dimen- sions, creating four accountability mechanisms. After setting forth the analyti- * Associate Professor of Law, Pepperdine University School of Law. © 2014, Gregory S. McNeal. This Article received the Article of the Year Award from the American National Section of L’Association Internationale de Droit Penal/The International Association of Penal Law. Earlier versions of this Article appeared as “The U.S. Practice of Collateral Damage Estimation and Mitigation” and “Kill- Lists and Accountability.” Thanks to Stacy New, Amos Guiora, Jens Ohlin, Claire Finkelstein, Dell Dailey, Ken Anderson, Timothy Matthews, Keith Petty, Mike Schmitt, Rich DiMeglio, Ahilan Ahrulan, Michael Lewis, Robert Chesney, Martin Flaherty, Jean Galbraith, John Yoo, David Kaye, Rick Pildes, and David Glazier for comments on drafts or presentations based on drafts of this Article. Thanks also to participants at University of Pennsylvania’s Targeted Killing conference, commentators from the ACLU’s National Security project, the Bureau of Investigative Journalism, callers who participated in the Federalist Society’s International Law and National Security teleforum, and to those who partici- pated in presentations and workshops at Vanderbilt, Washington & Lee, Colorado, The Army War College, George Mason, Rutgers-Newark, Cardozo, UC Irvine, UC Davis, Tulane, Santa Clara, Pacific McGeorge, Idaho, LSU, Gonzaga, Penn State, and Loyola LA. During the nearly two years of research associated with this project, I received outstanding research assistance from Eric Feil, Ben Hampton, Landon Derentz, Andrew Skinner, Gina McCoy, and Kevin Dulaney. I am especially indebted to the military and intelligence community members and trainers who were willing to speak with me about unclassified, yet opaque, practices. No classified information was revealed in the research or writing of this Article. 681 682THE GEORGETOWN LAW JOURNAL [Vol. 102:681 cal framework, the Article then applies it to the targeted killing program. The Article concludes with accountability reforms that could be implemented based on the specified framework. TABLE OF CONTENTS INTRODUCTION .......................................... 684 I. THE LEGAL BASIS FOR TARGETED KILLINGS .................. 690 A. DOMESTIC LEGAL FOUNDATION ........................ 691 B. INTERNATIONAL LEGAL FOUNDATION .................... 694 1. Jus ad bellum Justification ...................... 695 2. Jus in bello Characterization ..................... 698 C. CATEGORIES OF TARGETS ............................ 700 II. IT TAKES A BUREAUCRACY TO MAKE A KILL LIST .............. 701 A. HOW KILL LISTS ARE MADE ........................... 702 1. Developing Names for the List ................... 704 2. Who Is Worth Killing? ......................... 712 3. The Accountability Paper Trail ................... 721 4. Vetting and Validating Names for the Kill Lists ....... 723 5. Voting on and Nominating Names to the List ........ 726 B. IMPLICATIONS FOR THE ACCOUNTABILITY DEBATE ........... 729 III. EXECUTING A TARGETED KILLING ......................... 730 A. THE LAW OF ARMED CONFLICT IN THE CONTEXT OF TARGETED KILLING ....................................... 732 1. Distinction and Positive Identification .............. 733 2. Identifying Potential Harm to Civilians ............. 739 a. Pattern of Life Surveillance Redux ............. 739 b. The Collateral Damage Methodology ........... 740 3. Assessing Feasible Precautions ................... 745 a. Mitigating Damage to Collateral Concerns Through Weapon Selection ......................... 746 2014]TARGETED KILLING AND ACCOUNTABILITY 683 b. Mitigating Damage to Collateral Concerns Through Weaponeering ............................ 748 4. Proportionality Analysis and Approval Authority ...... 750 B. ACCOUNTABILITY PROBLEMS AND OPPORTUNITIES ........... 753 1. Military Performance in CENTCOM Theater of Operations .................................. 754 2. CIA Performance in Pakistan .................... 754 3. Explaining the Differences ...................... 755 IV. ACCOUNTABILITY IN THE TARGETED KILLING PROCESS ........... 758 A. MECHANISMS OF ACCOUNTABILITY AND CONTROL IN TARGETED KILLINGS ....................................... 758 B. LEGAL ACCOUNTABILITY AND TARGETED KILLINGS ........... 763 1. Judicial Review of Targeting Decisions: Al Aulaqi and El-Shifa .................................... 764 2. APA Foreign Affairs Exception .................. 768 3. International Legal Investigations ................. 769 4. Criminal Prosecution of Military and CIA Personnel . 770 C. POLITICAL ACCOUNTABILITY AND TARGETED KILLINGS ........ 771 1. Congressional Oversight ....................... 772 2. Presidential Politics ........................... 776 3. International Political Constraints ................. 779 D. BUREAUCRATIC ACCOUNTABILITY AND TARGETED KILLINGS ..... 780 E. PROFESSIONAL ACCOUNTABILITY ....................... 783 F. ACCOUNTABILITY LESSONS ........................... 785 V. ACCOUNTABILITY REFORMS ............................. 785 A. DEFEND THE PROCESS .............................. 785 B. USE PERFORMANCE REPORTING TO ENCOURAGE GOOD BEHAVIOR . 786 C. PUBLISH TARGETING CRITERIA ......................... 787 D. PUBLISH DOLLAR COSTS ............................. 788 E. ESTABLISH INDEPENDENT REVIEW BY A DEFENSE AND INTELLIGENCE REVIEW BOARD FOR TARGETED KILLINGS ....... 789 684THE GEORGETOWN LAW JOURNAL [Vol. 102:681 F. RECOGNIZE THE IMPRACTICAL NATURE OF EX POST JUDICIAL OVERSIGHT ..................................... 791 CONCLUSION ............................................ 793 APPENDIX A: METHODOLOGY ................................ 793 INTRODUCTION When the United States government kills people on traditional and non- traditional battlefields—and it does so on a near daily basis—bureaucrats play a key role in the killings. Bureaucrats help create lists of people to be killed, and sometimes bureaucrats themselves carry out the killings. The process is called targeted killing, and it involves bombs and missiles dropped from Unmanned Aerial Vehicles (UAVs)1 by members of the military or civilians employed by the Central Intelligence Agency (CIA).2 Some of the killings are sanctioned directly by the President of the United States, while others are authorized at a much lower level of government, deep within the military or intelligence bureaucracies of the Executive Branch. No matter which agency pulls the trigger, bureaucrats—far removed from public scrutiny and oftentimes outside the reach of courts—are essential to the success of the program. This Article explores America’s killer bureaucracy, describing America’s targeted killing program in rich detail and analyzing the profound accountability issues raised when bureaucrats kill.3 1. Also referred to as “drones” or “remotely piloted aircrafts.” 2. There are a variety of definitions of targeted killing. See, e.g., Rep. of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, 14th Sess., ¶ 1, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (defining a targeted killing as the “intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour 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”); Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and Law, in LEGISLATING THE WAR ON TERROR:AN AGENDA FOR REFORM 347 (Benjamin Wittes ed., Brookings Institution Press 2009) (defining a targeted killing as a “targeting of a specific individual to be killed, increasingly often by means of high technology, remote-controlled Predator drone aircraft wielding missiles from a stand-off position”); Gabriella Blum & Philip Heymann,