he struggle against terrorism— more specifically, the effort to T prevent terrorist attacks—has raised difficult legal and policy issues including so-called targeted killing, or the killing of specific individuals because of their involvement in ter- rorist organizations and operations. As we shall see, this form of targeted killing involves domestic and inter- national legal authorities and policy and prudential issues. A substantial number of countries confronting what they consider to be terrorist attacks and threats engage in targeted killings. Each has to resolve questions about authorities and prudence because, while terrorists are always criminals, they also may be lawful military targets. The dual character of terrorists leads to the conclusion that, as a matter of policy, a state should weigh the totality of the circumstances and conclude that no other action is reasonable to prevent a terrorist attack before engaging in the targeted killing. Careful analysis in advance may preempt problems later. This essay addresses the question principally from the American perspec- tive. It examines the authority, as a matter of U.S. law, for the United States to kill individual terrorists and the international legal context for such Marine fires M107 special operations. The operating premise is application scope rifle on USS that the targeted killing of al Qaeda San Diego as part of live-fire leaders is emblematic of the subject familiarization training during Composite Training Unit Exercise under review in contrast to such do- off coast of southern California (U.S. mestic police action against terrorists Marine Corps/Rome M. Lazarus) as the arrest, prosecution, conviction, and execution of Timothy McVeigh, who was principally responsible for the bombing of the Federal office building in Oklahoma City in April 1995.1 The essay concludes that authority in domes- Targeted Killing of tic and international law exists for such operations and that, as a policy choice, the United States would do well to Terrorists apply the Geneva Conventions of 1949 in the conflict with terrorists whether or not it is legally required. In any event, By Nicholas Rostow policymakers need to weigh the conse- quences of targeted killing operations because, like all military operations, Dr. Nicholas Rostow is Distinguished Research Professor and Senior Director in the Center for Strategic Research, Institute for National Strategic Studies, at the National Defense University. He is unforeseen results—positive and nega- also a Senior Research Scholar at the Yale Law School. tive—are likely.

98 Commentary / Targeted Killing of Terrorists JFQ 74, 3rd Quarter 2014 Authorities for Targeted Killing the military instrument to those situa- In other words, if the target is lawful As spokesmen for the U.S. Govern- tions where police action, by the United under the laws of armed conflict, a state ment have emphasized,2 America’s use States or the state in which the terrorist may use weapons, including weapons of force against terrorists takes place is found, is impossible. Had the perpe- delivered by remotely piloted, unmanned in the context of “armed conflict.” trators resembled Timothy McVeigh aerial vehicles, against such targets. In this For practical and legal reasons they and been subject to arrest inside the sense, targeted killing is high technology distinguish the conflict with al Qaeda United States, the use of the Armed sniping. and similar organizations from coun- Forces would have been neither neces- This analysis rests on the premise that terterrorism law enforcement at home sary nor appropriate. One therefore the United States is in an armed conflict or in other countries, which principally should not expect remotely piloted air- with al Qaeda as a result of the attacks of involves the police. This delimitation is craft attacks in London. In states unable September 11, 2001, a conclusion that commonsensical. It is also important. or unwilling to take action to prevent itself reflects a process of analysis. Under One does not want the U.S. Govern- their territories from being used by ter- longstanding principles of international ment engaging in military operations rorists, the legal and practical situation law, a state bears responsibility for uses on American soil absent extraordinary is different. A use of force, as against of force from its territory about which circumstances. Authority for using the Osama bin Laden, may be lawful as well it knew or should have known. That military instrument abroad against as the only practicable course, especially responsibility includes a duty to prevent terrorists in the context of “armed when a host government withholds its and, if prevention proves impossible, sup- conflict” comes from the Constitution cooperation. On balance, it became press. When a state is unable or unwilling and statute, and the use of armed force more important to the United States to discharge such international legal ob- needs to comply with the international and to the international multilateral ligations, the victim state presumptively law of armed conflict (also known effort to suppress terrorism to capture has rights of self-defense. Thus, when as the laws of war or international or kill bin Laden than to be sensitive to Afghanistan was the base from which the humanitarian law). a breach of Pakistan’s territorial integ- 9/11 attacks were conducted and when More than 200 years of practice have rity and amour propre. Afghanistan was unwilling or unable to confirmed that the President has the The conduct of military operations take action against the perpetrators, the responsibility to direct the Armed Forces pursuant to these constitutional and stat- United States enjoyed the right to use to defend the country. The President utory authorities has to conform to U.S. force in self-defense to attack those actors accordingly had constitutional authority legal obligations regarding armed con- in Afghanistan. This legal analysis pro- to order counterattacks by U.S. forces flict. In the main, the rules for American vides the basis for the U.S. use of force in against terrorists who had engaged in use of force are contained in the Geneva Afghanistan commencing in 2001. attacks against the United States and its Conventions of 1949 and subsequent citizens even before September 11, 2001. treaties to which the Nation is a party or, Laws of War and Presidents George W. Bush and as in the case of some articles of the 1977 Targeted Killing Barack Obama have not had to rely on Protocols Additional to the 1949 Geneva Confusion has bedeviled discussion of their constitutional authority alone. After Conventions, which Washington regards the conflict between the United States September 11, 2001, Congress gave the as accurate statements of the customary and al Qaeda. Assuming that al Qaeda is President broad authority international law of armed conflict. In a true nonstate actor, governments have 2010 the State Department Legal Adviser had to decide whether the United States to use all necessary and appropriate force stated that the United States applied “law is in international armed conflict with against those nations, organizations, or of war principles,” including: al Qaeda and, if so, what rules apply. persons he determines planned, authorized, These questions are rooted in the lan- committed, or aided the terrorist attacks First, the principle of distinction, which guage of the four Geneva Conventions that occurred on September 11, 2001, or requires that attacks be limited to military of 1949. harbored such organizations or persons, in objectives and that civilians or civilian By their terms, the Conventions order to prevent any future acts of interna- objects shall not be the subject of the attack; apply to conflicts among the “High tional terrorism against the United States and Contracting Parties” or to “armed by such nations, organizations, or persons.3 conflict[s] not of an international Second, the principle of proportionality, character occurring in the territory of which prohibits attacks that may be expected This statute provided explicit authority one of the High Contracting Parties.”5 to cause incidental loss of civilian life, injury for U.S. military operations in Afghani- This language means, respectively, to civilians, damage to civilian objects, or a stan and against those the President conflicts between or among states and combination thereof, that would be excessive determined were involved in the Sep- civil wars.6 Based on that language, the in relation to the concrete and direct mili- tember 11 attacks. The words “neces- U.S. Supreme Court determined that tary advantage anticipated.4 sary and appropriate” limit the use of the conflict with al Qaeda was a global,

JFQ 74, 3rd Quarter 2014 Rostow 99 The Geneva Convention Approach The Geneva Conventions, binding as they are on all states, provide a useful guide to governments. They do so whether one uses military or law enforcement instruments against ter- rorists. If a government treats terrorists outside its jurisdiction or the jurisdic- tion of a state capable of using the criminal law against terrorists as subject to the Geneva Conventions, then its course is clear. If it captures a terrorist fighter, that fighter may be prosecuted for violations of the Geneva Conven- tions and then returned to prisoner of war status once a sentence, if any, is served. Prisoner of war status ends with the end of the conflict. Today it is difficult to foresee an end to the U.S. conflict with al Qaeda notwithstanding the deaths of so many al Qaeda leaders and followers. Treating terrorists as if they are not combatants and are not entitled to pris- oner of war status may be legally correct; it nonetheless puts a government in a policy and legal straitjacket. Terrorists inevitably fail the requirements set forth in the third Geneva Convention to wear a uniform, carry weapons openly, obey the laws of war, and operate in an organized fashion under a commander responsible for his or her subordinates, with rigorous systems of command and control, in order to enjoy the privileged status of combatant and prisoner of war upon capture.9 The terrorists’ failure in these respects does not make it easier to deal with detainees, as the American experience during the past 11 years dem- onstrates. As a result, a new approach is needed. That approach should be rooted in the law and in common sense. The U.S. Special Forces Soldiers attached to Combined Joint Special Operations Task Force–Afghanistan prepare to enter and clear room while conducting close-quarter battle drill at shoot house in Kabul Geneva Conventions provide both. Province (U.S. Army/Connor Mendez) For the United States, acting as if terrorists captured in battlefield condi- noninternational armed conflict to this regard involved intellectual incoher- tions are combatants and therefore which Common Article 3 of the Geneva ence. As it must, the executive branch prisoners of war would have a number of Conventions of 1949 applied because adheres to the Supreme Court decision. benefits. First, it would limit challenges that seemed to be the only part of the At the same time, without violating that to the legal status of detainees because Conventions that could apply to nonstate decision, the U.S. Government may fol- they would not be held in what might actors.7 While the effort to avoid placing low an intellectually coherent and simpler appear to be legal limbo. As a result, alleged terrorists in a legal no-man’s land approach than the Supreme Court’s by whether they were held in prisoner of is laudable, the Supreme Court’s effort in following the Geneva Convention lead.8 war facilities within the United States or

100 Commentary / Targeted Killing of Terrorists JFQ 74, 3rd Quarter 2014 RQ-4 Global Hawk from Andersen Air Force Base, Guam, lands at Misawa Air Base, Japan (U.S. Air Force/Nathan Lipscomb)

Ends,” Rutgers Law Review 63, no. 4, Summer at Guantánamo Bay would not matter in chosen tactics. For example, the negative 2011, 1215. legal terms. Detainees would not acquire consequences of the frequent U.S. use 2 See Harold Hongju Koh, “The Obama more rights by being held as prisoners of of remotely piloted aircraft to attack al Administration and International Law,” Annual war within the United States than they do Qaeda in Pakistan in 2011 led to an in- Meeting of the American Society of Interna- in Guantánamo Bay, and the administra- tense “Pakistani animus toward unilateral tional Law, Washington, DC, March 25, 2010; Eric Holder, Remarks at the Northwestern tion should be able to close the prison U.S. action [with] huge implications for University School of Law, March 5, 2012. facilities there without increasing its legal America’s counterterrorism aspirations 3 Joint Resolution, “Authorization for Use exposure. Second, it would clarify the in the country.”11 To avoid negative of Military Force,” September 18, 2001, P.L. status of prisoners for prison guards by consequences does not require inaction, 107-40 [S.J. Res. 23]. 4 making clear that the prisoners were not but rather an effort at forethought and Koh. 5 Common Article 3 to the Four Geneva in a penitentiary status unless convicted foresight. It is something that cannot Conventions of August 12, 1949, reprinted in of a crime. Third, it could improve the be guaranteed even if one abides by the Documents on the Laws of War, ed. Adam Rob- international reputation of the United law. So far the United States has followed erts and Richard Guelff, (New York: Oxford States, which stands sullied as a result of U.S. and international law by engaging in University Press, 245, 2000). 6 allegations of torture and questions about targeted killing as a combat tactic against Rostow, 1231 (relying on Dinstein). 7 Hamdan v. Rumsfeld, 548 U.S. 557, 630 its authority to hold alleged terrorists military targets. Keeping to this line will (2006). indefinitely, even those who might be be clarifying and simplifying even though 8 See Rostow, 1231–1232. acquitted at trial. one may argue that the law does not 9 Geneva Convention Relative to the Treat- Since 9/11, the United States has require treating terrorists as if they were ment of Prisoners of War, August 12, 1949, in traveled far in its quest to diminish, if not military targets. Lawfulness by itself does Documents on the Laws of War, 246 (Art. 4A(2)). 10 Compare Chris Toensing and Ian Urbina, eliminate, the risk of terrorist attack. In not guarantee wisdom. But it is a good “Israel, the US and ‘Targeted Killings,’” Middle the process it has revealed much about starting place. JFQ East Report Online, Middle East Research its willingness to engage in targeted kill- and Information Project, February 17, 2003, ing and the conclusion that this tactic is to John O. Brennan, transcript, “The Ethics useful and “wise” as well as legal.10 The Notes and Efficacy of the President’s Counterterror- ism Strategy,” Woodrow Wilson International argument for wisdom is that technology Center for Scholars, April 30, 2012. * Courtney Lang, class of 2015 at the permits such a high degree of accuracy 11 Thomas F. Lynch III, The 80 Percent Georgetown University School of Foreign Solution: The Strategic Defeat of bin Laden’s that collateral damage—the killing of Service, ably assisted in the preparation of this al-Qaeda and Implications for South Asian bystanders—and the risk to American essay for publication. Security, National Security Studies Program lives are reduced. The third test of wis- 1 See generally, Nicholas Rostow, “The Policy Paper (Washington, DC: New America Laws of War and the Killing of Suspected Ter- dom is an act’s consequences. The wise Foundation, February 2012), 15. strategist will weigh consequences of rorists: False Starts, Rabbit Holes, and Dead

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