A Practice Unchecked: The Legal Dilemma of Targeted Killing
Targeted killings by the Government raise unique moral issues. These targets are often suspected terrorists responsible for the planning and execution of terrible violence against civilians, the police, US soldiers and other military units. While it is difficult for many to take interest in the killing of those responsible for violence and acts of terrorism, the killing of Anwar Awlaki, a US citizen, has proven difficult to ignore.
Targeted killings by the Government raise unique moral issues. These targets are often suspected terrorists responsible for the planning and execution of terrible violence against civilians, the police, US soldiers and other military units. While it is difficult for many to take interest in the killing of those responsible for violence and acts of terrorism, the killing of Anwar Awlaki, a US citizen, has proven difficult to ignore. Debate has surfaced over the past few weeks about the legality of targeting a US citizen.1 Specifically, people have questioned whether Awlaki should have been captured and tried, rather than targeted by missile fire, and whether the killing was a violation of the Fifth Amendment.2 However, neither the practice of targeted killing, nor the legal issues surrounding it are limited to the case of Awlaki.
Awlaki was killed in Yemen, along with Samir Khan, another US citizen, and others, following a two-year search. While the targeting of Awlaki was the first such strike in Yemen since 2002; Awlaki has not been the only subject of targeted killing.3 In August of 2009, a missile struck a farmhouse in a remote region of Pakistan, killing a man on dialysis and his wife. The man killed was Baitullah Mehsud, a leader of the Pakistani Taliban4 and the man thought to be responsible for the assassination of Benazir Bhutto, former prime minister of Pakistan. And as recently as last week, a drone strike killed three senior members of the Haqqani network in northern Pakistan, bordering Afghanistan.5 These episodes indicate the Government’s growing reliance on unmanned aerial vehicles, to carry out activities in regions that are too difficult to reach or too unstable for ground troops; a reliance that may lead to more targeted killings. As the U.S. increasingly relies on the practice of targeted killing, we must determine whether the practice is legal under US and international law.
Issues of combatant status and treason aside, Awlaki and Khan, as U.S. citizens, were entitled to Fifth Amendment rights to due process.6 International human rights provide a similar protection: under the International Covenant on Civil and Political Rights, “every human being has the inherent right to life, this right shall be protected by law.”7 Pursuant to these guarantees, a person can only be deprived of his right to life in certain circumstances, e.g. after a sentence of execution following a conviction. While many may applaud the killing of Awlaki, Mehsud, and leaders of the Haqqani network, it seems evident that the use of force against them violated the due process clause of the Fifth Amendment and due process requirements of the ICCPR.8
U.S. law contains many apparent contradictions that further complicate the issue of targeted killing. According to an executive order signed by President Reagan, “[n]o person employed by or action on behalf of the United States Government shall engage in or conspire to engage in assassination.”9 Assassination is “the act of deliberately killing someone especially a public figure . . . for political reasons.”10 Can Regan’s order be overlooked because Awlaki, Mehsud, or the Haqqani network were not traditional political leaders or because their demise was part of a strategic military plan? Or, were these men targeted specifically because of their roles as public figures and for political reasons? The former explanations may explain away any conflict with Reagan’s executive order but the latter, more likely statement of events – that they were targeted for their roles as political leaders – establishes that their targeting violated an executive order.
The strongest source of authority and legal justification for the practice of targeting killing is found in the Authorization for Use of Military Force.11 The AUMF, passed by Congress on September 18, 2001 in response to the 9/11 attacks, gives the President broad authority “to use all force necessary and appropriate . . . to prevent future acts of international terrorism against the United States.”12 Accordingly, the AUMF allows the President to authorize targeted killings and a wide range of other military actions so long as they are deemed necessary and appropriate. Because this limit on the AUMF is so ambiguous, the act does not sufficiently check the President’s power.
In order to locate a sufficient check on the Government’s power to target and to kill, it is necessary to turn to international humanitarian law: the standards, treaties and laws that regulate war. In 2006, when Israel sought to pursue a similar targeted killing program against terrorists, the Israel Supreme Court set forth a number of guidelines that determine when targeted killing is permissible. The court required that the attacking force must prove the target was an unlawful combatant. This heavy burden demands that the target’s identity be verified and that he is an unlawful combatant acting against the attacking party.13 The court also determined that any act of targeted killing must be proportional; i.e., the benefit of the military objective of the targeted killing must be proportional to any damage to innocent civilians.14
The U.S. should apply the guidelines set forth by the Supreme Court of Israel. It should be necessary that the Government show that the target was a combatant attacking or planning to attack U.S. citizens or other interests. Furthermore, the Government must show that the strike was proportional, and that steps were taken to minimize loss of innocent life. In doing this, the Government would make it clear to its citizenry and the international community that it does not practice targeted killing lightly. By meeting this burden of proof for showing that Awlaki, Mehsud, or members of the Haqqani network were combatants targeting U.S. interests, by showing that the attacks are proportional, the U.S. would have stepped out from behind the curtain of state secrets, showing that these are not simply covert attacks but are actions taken for valid military and national security reasons.
The US has not officially taken responsibility for the death of Awlaki, Mehsud or members of the Haqqani network, however, that does not lessen the need for transparency in the practice of targeted killing. The US should make it clear both to Americans and the international community that it is working within a legal framework and has undertaken this practice for legitimate reasons. In doing so, the U.S. will calm the fears of many who wonder whether there is anyone the Government cannot target and kill.15
1 Charlie Savage, Secret U.S. Memo Made Legal Case to Kill a Citizen, N.Y. Times, Oct. 8, 2011; Arthur S. Brisbane, Op-Ed., The Secrets of Government Killing, N.Y. Times, October 8, 2011; Mark Mazzetti, Eric Schmitt & Robert Worth, Two-Year Manhunt Led to Killing of Awlaki in Yemen, N.Y. Times, September 30, 2011.
2 Savage, supra.
3 Mazzetti, Schmitt & Worth, supra.
4 The Pakistani Taliban is comprised of an estimated 20,000 fighters who have used suicide bombings to kill hundreds of Pakistani police, soldiers and civilians. Zahid Hussain & Jeremy Page, Taleban Commander Baitullah Mehsud killed in U.S. missile Strike, The Times, Aug. 8, 2009.
4 Declan Walsh, Air Strike Kills Taliban leader Baitullah Mehsud, The Guardian, Aug. 7, 2009.
5 Karen DeYoung, U.S. goes after Haqqani Network, The Washington Post, October 15, 2011.
6 “No person shall be…deprived of life, liberty or property, without due process of law”. U.S. Const. amend. V.
7 Office of the United Nations High Commissioner on Human Rights, International Covenant on Civil and Political Rights, Dec. 16, 1966, available at http://www2.ohchr.org/english/law/ccpr.htm.
8 It is illegal to deprive an individual of constitutional rights under color of law. 18 U.S.C. § 242; U.S. v. Price, 383 U.S. 787 (1966)
9 Exec. Order No. 12333, 46 Fed. Reg. 59941 (Dec. 4, 1981), amended Aug. 27,2004.
10 Black’s Law Dictionary 102 (9th ed. 2009).
11 Authorization for Use of Military Force, Pub. L. No. 107-40 115 Stat. 224 (2001); War Powers Resolution, 50 U.S.C.S. 1541 (2011).
13 Public Committee Against Torture in Israel v. Israel, 46 I.L.M. 373, 393 (2006).
14 Id. at 394.
15 Arthur S. Brisbane, Op-Ed., The Secrets of Government Killing, N.Y. Times, October 8, 2011.