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The Finals Focus LD

Resolved: Targeted killing is a morally permissible foreign policy tool.

Table of Contents
PRO: [ 6 ] Targeted killing is permissible under rules of engagement The law of war permits targeted killing Targeted killing is justified under the law of armed conflict Targeted killing is consistent with notions of national self-defense Targeted killing is not constrained by traditional criminal law Terrorists should not be able to hide behind third party sovereignty Naming soldiers to target is not immoral The lawful exercise of lethal force is not condemned The subjects of targeted killing are combatants, not criminals [ 9 ] Targeted killing is permissible under international law The UN Charter justifies targeted killing Article 51 of the U.N. justifies the violation of national sovereignty [ 10 ] Targeted killing is permissible under domestic law (case study) Targeted killing is within the Presidents Constitutional authority Target killing is justified under the AUMF A President does not need a formal declaration of war to carry out a killing in self-defense Targeted killing does not lack oversight merely because its carried out in the executive Targeted killing program is not unchecked - The United States Targeted killing programs need not lack oversight - ex. FISA Targeted killing programs need not lack oversight CIPA [ 12 ] Targeted killing is not an extra-judicial killing/Assassination Targeted killing is not assassination #1 Targeted killing is not assassination #2 Killing a terrorist is not murder/assassination - Osama bin Laden A combatants political status does not exempt them from self-defense actions Targeted killing is not extra-judicial killing Targeted killing does not occur during peacetime Targeted killing does not apply to those individuals who are under state control or domain Constitutional rights abroad are not guaranteed [ 16 ] On balance, targeted killing is the lesser evil Lethal force is a more effective and precise means of dealing with terrorism There are drastic humanitarian benefits to targeted killing

Targeted killing allows for the same outcomes without exposing serve men and civilians to massive risk [ 17 ] Targeted killing is philosophically consistent with other current practices Innocent civilians are subject to harm regardless of the type of military engagement Casualties do not render targeted killing immoral The evidence of civilian casualties in Pakistan is highly contested Philosophically speaking war and targeted killing both seek prevention Targeted killing involves the same sort of calculations as other engagements with lethal force [ 19 ] Targeted killing is necessary Targeted killing aids to the defense of innocent citizens The state must be able to engage terrorists if self-defense is to be achieved Refusing to engage in targeted killing would grant terror organizations a license to kill The nature of terrorist organization provokes a different response than full out warfare Aggressive terror maneuvers require more aggressive counter-terrorist policy Targeted killing accounts for changes in the face of modern warfare Arresting terror hostiles is futile to impossible Often the necessary authorities abroad are unwilling or unable to act to stop terrorism Unreliable and ineffective foreign militarys has made targeted killing a desirable tool Terrorism has driven Israeli counterterrorism strategy outside the scope of traditional criminality Targeted killing has been a necessary response to Israeli terrorism Targeted killing is a last resort to protect citizens ex. Israel [ 25 ] Targeted killing is effective Targeted killing merely enhances the effectiveness of the overall campaign The best strategy in targeting terror organizations is to target individuals Even low level targeted killings can greatly inhibit the enemy Targeted killing makes terrorist organization less effective Targeted Killing can cripple enemy operations Targeted killing is permissible to preclude greater atrocities Targeted killing is permissible to minimize military and civilian casualties Targeted killing is permissible to disrupt the regime's brutal activities Targeted killing is permissible to avoid complications of taking high-profile prisoners Targeted killing is permissible to prevent WMD use CON: [ 29 ] Targeted killing violates rule of law Targeted killing violates existing law Targeted killings are inconsistent with democratic ideals Target Killing violates the ideals of due process

The rights to challenge incarceration ought to apply to a death sentence as well The court has acknowledged the dilemma between targeted killing and due process Most of the international community agrees that targeted killings are illegal and immoral Sanctioning targeted killing removes any legal responsibility to and accountability for the accusation at hand Congress should not make intelligence judgements concerning the guilt of suspected terrorists Armed conflict has not been credibly defined and thus discussions of targeted killing within the framework of armed conflict are futile Targeted killing programs are a license to kill in secrecy Targeted killing will never fit into the legal framework of international law [ 33 ] Targeted killing violates international protocols on human rights International Human Rights Law does not allow for the targeting of individual combatants Targeting specific soldiers violates the moral codes of warfare Without due process and apprehension error rates are high - remember Guantanamo Bay Targeted killing has not spared civilian casualties

[ 35 ] Targeted killing violates just war theory Targeted killing logic leaves no state free from the potential aggression of another state Targeted killing essentially turns the global landscape into a warzone in which no killing vaguely related to self-defense if off limits - United States The active defense theory behind targeted killing means that targeted killing could subjectively be used at any given point in time Targeted killing logic tramples upon the sovereignty of other nations It is unlikely that we would support targeted killing if the United States were on the opposite end of the spectrum - not a universal standard The use of targeted killing is undesirable as a universal policy [ 38 ] Targeted killing is immoral Terrorists are political figures targeted killing is assassination Targeted killing raises fundamental moral objections Targeted killing is un-proportional [ 39 ] Targeted killing programs are counterproductive Targeted killing removes certain moral calculations of war making violence more likely Targeted killing has increased the risk of insurgency amongst the Taliban Lack of support for targeted killing actually harms the war on terrorism Drone attacks harm civilians, fuel anti-American sentiment. Targeted killing leads to the loss of U.S. domestic and international legitimacy Targeted killing incites retaliation Targeted killing breeds international or regional instability

Policing and government are much more effective than targeted killing and other military campaigns

PRO
Targeted killing is permissible under rules of engagement The law of war permits targeted killing Waxman, Matthew. Adjunct Senior Fellow for Law and Foreign Policy. The Targeted Killing Debate. Council of Foreigh Relations Online. http://www.cfr.org/international-peace-andsecurity/targeted-killings-debate/p25230. Published June 8, 2011. The aspect of the United States' targeted killing policy that is of greatest concern is that which permits deliberate, preemptive strikes outside zones in which the United States is engaged in active combat such as in Afghanistan. In such zones, the intensity of fighting between organized armed groups creates a certain exigency that permits killing outside the usual confines of the law, which would otherwise require due process or excuse the use of lethal force only in narrow circumstances of self-defense. It is that exigency--of war--that triggers the application of a different set of rules--the laws of war--and permits uses of force that would otherwise be unlawful and unacceptable. Targeted killing is justified under the law of armed conflict Anderson, Kenneth. Professor of International Law. Targeted Killing and Drone Warfare. The Hoover Institute Online. http://media.hoover.org/sites/default/files/documents /FutureChallenges_Anderson.pdf. Published 2011. According to one legal view widely accepted by human rights advocates and other commentators, uses of deadly force in international law must necessarily fall into one of two legal categories. Any lawful use of deadly force must be either law enforcement under the rules of law enforcement, which (with rare exception) seek to detain and arrest rather than to kill in the first instance, on the one hand, or armed conflict under the laws of war, on the other. Under this legal framework, the regulation of how force can lawfully be used is binary in that it is either law enforcement within the international law regime of human rights or armed conflict within the regime of the law of armed conflict (perhaps incorporating significant materials of human rights law as well). How does targeted killing fit into this binary framing of international law regulating the use of deadly force? Under narrow circumstances law enforcement condones targeted killing as self-defense or defense of others. Targeted killing in this instance does not mean killing in the course of an otherwise lawful attempt to arrest or detain but instead targeting to kill as such. The most obvious examplethere are not manyis shooting to kill a hostage taker where police believe that the hostage is in imminent danger. The alternative legal regime is armed conflict. The law of armed conflict accepts the targeting and killing of combatants, based solely on their status: as members of the armed forces of a party to a conflict and, under certain circumstances, those, including civilians, who might engage in hostilities so to make themselves lawful targets. Targeted killing is consistent with notions of national self-defense

Kasher, Asa. Professor of Ethics. Assasination and Preventative Killing. The John Hopkins University Press Online. http://muse.jhu.edu/journals/sais_review/v025/25.1kasher.html. Published 2005. During an armed conflict, self-defense is a political purpose, and killing prominent persons who are involved in making operative decisions concerning acts of terror is morally and ethically justified as an act of self-defense, under conditions of military necessity (B.1). To be sure, acts of self-defense can be pre-emptive, where the danger is imminent, or preventive, where there is an ongoing process that jeopardizes people but not imminently so. Both pre-emptive and preventive strikes are governed by the same principles of Military Necessity and Distinction, among others. Both pre-emptive and preventive strikes are tactical. They are not governed by a strategy that is meant to gradually change the general situation. They are professional means of providing citizens with effective defense against terror acts, the use of which is governed by moral and ethical principles such as B.1 and B.2 Targeted killing is not constrained by traditional criminal law Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. Criminal law is not about killing people as such; it is, rather, about arresting, literally stopping their activities and punishing them for ones that violate the law. Resisting arrest can lead to deadly violence, but the paradigm of law enforcement is one that fundamentally takes place within an ordered domestic society in which the governmental use of deadly force is incidental to the attempt to arrest alleged criminals. That is, its virtue is that it takes place in a settled, ordered society with a legitimate government. That also represents its limitation in dealing with terrorists, who are at once enemies of that society and criminals in their methods and often shelter beyond the reach of its institutions. Armed conflict accepts a willingness to kill people in the pursuit of political ends, and those killings are not limited merely to killings incident to attempted arrest. Its virtue is that it is addressed to enemies who come from outside a settled society, but its limitation is that its uses of force are not underwritten with the legitimacy of a state in an ordered society. Policing and war-making are two radically different deployments of violence by the state, the former the exercise of a legitimate near-monopoly on violence and the latter the exercise of the level of violence dictated by military necessity so as to create a monopoly on violence. Terrorists should not be able to hide behind third party sovereignty Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009.

The gap between U.S. needs and consequent views of self-defense and the views of the international law community is probably unbridgeable. But this is not a case of the United States versus the rest of the world. There are, rather, a sizable number of states that have to worry about the possibility of enemies using havens in third countries, shielded by claims of that third countrys sovereignty. It is a delicate dance in international law; no one wants to say too much one way or the other, and when actual instances of state practice occur, very often the reaction is a discreet silence Thus, leaving aside the United States or Israel, Murphy notes that Turkey has undertaken various cross-border operations against the Kurdish separatist guerrilla organizationwithout being condemned by the Security Council, General Assembly, or [the] International Court. Naming soldiers to target is not immoral Yoo, John. Professor of Law at the University of California School of Law, Berkley.Assassination or Targeted Killing After 9/11. New York Law School Law Review.Published 2012. Lieber forbids combatants from naming other soldiers as outlaws solely because they are enemy soldiers, a presumption that is central to the laws of armed conict. Statman circumvents Liebers concerns when he declares that certain combatants are personally responsible for atrocities and therefore subject to special denunciation. This claim is not controversial. Parties to an armed conict (and, indeed, any nation) may always charge specic combatants with war crimes if they egregiously violate the conventions of war. In doing so, however, the reigning paradigm returns to law enforcement and, with it, the requirement of due process that governs the prosecution of any war criminal. The lawful exercise of lethal force is not condemned Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. Sofaer suggests as much when he says that examination of international laws of war also supports limiting the assassination prohibition to illegal killingbut then carefully makes clear that illegal killing does not include the lawful exercise of the right of self-defense under international law. And, with respect to domestic law, assassination is a term of art referring to a form of already-illegal murder, gradually unfolding in U.S. state practice, but, in any event, not something that should be construed in a manner that inhibits the lawful exercises of lethal force. The subjects of targeted killing are combatants, not criminals Visbal, Janiel. Professor at the Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Center Herzliya. Legal and Democratic Dilemmas in the Counter-Terrorism Struggle. Universidad del Norte. Published 2011.

Modern history has presented a complex question regarding the status of terrorists, whether they are criminals or combatants. Criminals are those individuals who break domestic law and are no longer considered law abiding citizens. Despite this fact, they are not combatants and they enjoy the protection of civil liberties and guarantees under international law (Israeli Supreme Court, HCJ 769/02). These individuals, according to Ganor (2008, p. 8) must be arrested and judged in accordance with the provisions of the domestic penal law. Conversely, combatants are individuals who take a direct part in the hostilities in an armed conflict and are covered by the IHL protections but still are legitimate targets of military operations.

Targeted killing is permissible under international law The UN Charter justifies targeted killing Jahagirdar, Om. Attorney and legal analyst. Targeted Killing, Not Assassination: the legal case for the United States to Kill Terrorist Leaders. University of Virginia School of Law. Published December 1, 2008. There are two provisions under the UN charter which the US can use to justify targeted killings abroad. Article 2(4) generally prohibits the use of force against another state, unless the action is sanctioned by the Security Council or the state utilizes Article 51. Military action by the Security Council is rare because unanimity usually cannot be reached, so this article will instead focus on Article 51 authority. Article 51 of the UN charter states in relevant parts: nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations. When the US has suffered a terrorist attack and wishes to pursue terrorists abroad, it would be wise to invoke Article 51 authority in order to abide by international law so that the laws of war control as they would in any formally declared conflict. Under Article 51 authority, the US would be able to attack foreign terrorist leaders without any heightened fear of international reprisal or condemnation, but Article 51 is not limited to situations when a country has declared a formal war. One author has stated that acting consistent with the charter of the United Nations, a decision by the President to employ clandestine [force]would not constitute assassination if the US were attacking those that pose a security threat to the US. Scholars seem to agree that the use of force as self-defense must be immediately subsequent to and proportional to the armed attack to which it was an answer, or a state can launch an anticipatory attack if it has enough reliable evidence to believe that there will be further attacks from a particular source. Article 51 of the U.N. justifies the violation of national sovereignty Jahagirdar, Om. Attorney and legal analyst. Targeted Killing, Not Assassination: the legal case for the United States to Kill Terrorist Leaders. University of Virginia School of Law. Published December 1, 2008. The attacks in 1998 against al-Qaeda, and the specific targeting of bin Laden, were

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lawful because the US invoked Article 51 citing self-defense. Even at that time, al-Qaeda presented a consistent and credible threat to the security of the US. The more complex issue in the 1998 strikes was that al-Qaeda was a non-state entity and the attacks clearly violated the sovereignty of Afghanistan and Sudan. Although those specific states were not directly involved in attacks against US interests, they were supporting and giving aid to terrorists and even President Clinton warned countries that, whether or not they were directly involved in planning a terrorist attack, they could find [themselves] on the receiving end of the US military force. Targeted killing is permissible under domestic law (case study) Targeted killing is within the Presidents Constitutional authority Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003. According to international law and U.S. domestic law, the president of the United States, in executing his constitutional authorities as commander in chief of the U.S armed forces, may legally order the killing of a regime leader as part of an armed conflict as long as it is not a "treacherous" killing, an indiscriminate killing, or cause "unnecessary pain and suffering." As commander in chief, the president alone is directly responsible for the use of force by the armed forces, and he alone must determine the appropriate, most effective means by which to bring the conflict to a conclusion. If the president were to determine that the most effective way to bring the armed conflict to a successful conclusionminimizing the loss of life while accomplishing the objective of the conflictis to eliminate the enemy state's leader, he has the legal authority to do so. Target killing is justified under the AUMF McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011 In its brief in response, the DOJ argued that the Presidents power to conduct the targeted killing of Aulaqi comes from two sources of authority. First, and more narrowly, the DOJ argued that the Authorization for the Use of Military Force (AUMF) serves as a statutory grant of authority to retaliate against threats of terrorism from al-Qaeda. Second, and much more broadly, the DOJ argued that the authority to use defensive force against imminent threats of terrorism is inherent in the Presidents Article II military power. A President does not need a formal declaration of war to carry out a killing in self-defense Jahagirdar, Om. Attorney and legal analyst. Targeted Killing, Not Assassination: the legal case for the United States to Kill Terrorist Leaders. University of Virginia School of Law. Published December 1, 2008.

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It seems logical, though, that other terrorist networks [with no connection to al-Qaeda] which target US persons or property do not fall with the 2001 authorization Where, then, does the President get the authority to kill other high level terrorists or other foreign enemy leaders? A logical and pragmatic answer is that the President can authorize the military or intelligence services to kill those who would do harm to the US, with authorization coming generally from his or her constitutional Commander-in-Chief power. That general grant of authority might be explicit enough to authorize the killing of those who would harm the US. This power should be used in conjunction with the factors of imminence and proportionality, discussed below, and would be likely to be used if a UN option were not available since on numerous occasionsPresidents have ordered the use of military force without congressional authorization and arguably in violation of the UN Charter. However, a more concrete foundation can be found by analysing international law. Targeted killing does not lack oversight merely because its carried out in the executive McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011 Rizzo has called the process by which suspected terrorists are identified and targeted for lethal force as punctilious. Bruce Reidel, a former CIA officer, claims there is a well-established protocol. Within the CIAs Counterterrorist Center, a team of roughly ten agency attorneys reviews the evidence against suspected terrorists and prepares memos arguing whether or not the collected evidence merits an order for targeted killing. Memos that recommend targeted killing are sent to the General Counsel for approval. Rizzo described the subordinate lawyers as very picky and the memos as carefully argued. He also described situations in which flimsy cases were rejected for lack of persuasive evidence. Targeted killing program is not unchecked - The United States McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011

However, the judiciary may, as a matter of law, review the use of military force to ensure that it conforms with the limitations and conditions of statutory and constitional grants of authority. In the context of targeted killing, a federal court could evaluate the targeted killing program to determine whether it satisfies the constitutional standard for the use of defensive force by the Executive Branch. Targeted killing, by its very name, suggests an entirely premeditated and offensive form of military force. Moreover, the overview of the CIAs targeted killing program revealed a rigorous process involving an enormous amount of advance research, planning, and approval. While the President has exclusive authority over determining whether a specific

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situation or individual presents an imminent threat to the nation, the judiciary has the authority to define imminence as a legal standard.

Targeted killing programs need not lack oversight - ex. FISA McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011

As the Aulaqi case demonstrates, any resolution to the problem of targeted killing would require a delicate balance between due process protections and executive power. In order to accomplish this delicate balance, Congress can pass legislation modeled on the Foreign Intelligence Surveillance Act (FISA) that establishes a federal court with jurisdiction over targeted killing orders, similar to the wiretapping court established by FISA. There are several advantages to a legislative solution. First, FISA provides a working model for the judicial oversight of real-time intelligence and national security decisions that have the potential to violate civil liberties. FISA also effectively balances the legitimate but competing claims at issue in Aulaqi: the sensitive nature of classified intelligence and national security decisions versus the civil liberties protections of the Constitution. A legislative solution can provide judicial enforcement of due process while also respecting the seriousness and sensitivity of executive counterterrorism duties. In this way, congress can alleviate fears over the abuse of targeted killing without interfering with executive duties and authority. Targeted killing programs need not lack oversight CIPA McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011

The Classified Intelligence Procedures Act (CIPA) provides another blueprint for a possible legislative solution. CIPA was passed to protect against the practice of graymailing, in which defendants accused of crimes by the government would cause the release of classified information through discovery if prosecuted. This left the government with a difficult choice: either drop the charges or continue the case and risk the exposure of sensitive information. CIPA responded to this problem by providing unclassified substitutes to privileged information that allow the litigation to proceed. During discovery, security-cleared defendants and defense counsel are allowed to review classified evidence. Also, defendants in possession of classified evidence for use at trial are allowed to utilize this evidence using a similar procedure that\ protects against public release Targeted killing is not an extra-judicial killing/Assassination Targeted killing is not assassination #1

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Guiora, Amos. Professor of Law at Case Western University School of Law. Targeted Killing as Active Self-Defense. Case Western University School of Law Symposium. October 8, 2004. Targeted killing is also not an assassination. An assassination is the killing of a political leader or a statesman and, according to international law, involves treachery or perfidy.^^ Terrorists are not political leaders or statesmen and should never be considered as such. The difference between a terrorist and a political leader is important to targeted killing. For example, Arafat, though he supports terrorism, would not be an appropriate object of a targeted killing because of his current status. Targeted killing is not assassination #2 Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. Many others, however, have argued, in part based on the focus of the Church committee hearings, that assassination as understood in American usage connotes attacks directed at political leadersand terrorists are not political leaders. Still others have noted that the term carries a sense of covertness and treachery, and not merely surprise. And still others have argued that acts of self-defenseincluding armed conflict undertaken within the legal meaning of self-defense, and including surprise attacks as part of self-defenseare outside the scope of the assassination ban. The United States government has expressed official views, however. The view of Legal Adviser to the State Department under Reagan, Abraham Sofaer, for example, was that assassination was not merely a killing with a political motive or aimed against a political leader, but that it also independently had to be a murder in the first place. Sofaer noted that virtually all available definitions of assassination include the word murdera crime[;] that element is the most fundamental aspect of the assassination prohibition. Thus, under no circumstances should assassination be defined to include any otherwise lawful homicide. Unlawfulness, in the State Department view of the 1980s, and apparently not contravened by later pronouncements, is a necessary prior element of an assassination. \ Killing a terrorist is not murder/assassination - Osama bin Laden Jahagirdar, Om. Attorney and legal analyst. Targeted Killing, Not Assassination: the legal case for the United States to Kill Terrorist Leaders. University of Virginia School of Law. Published December 1, 2008. Restricting the use of the term assassination to the killing of political leaders alone is not helpful; this would mean that, if the US had killed Osama bin Laden when he was a political/religious leader of the Taliban, it would have been regarded as an assassination simply because he was in a senior position within the Taliban government, which controlled

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Afghanistan. However, had the US killed him after the Taliban were driven from power, he would only have been killed. Such a distinction seems futile since bin Ladens actions were criminal whether he was head-of-state or former head-of-state, and his killing could not rightly be called a murder (as if he were an innocent victim) because he helped plan the September 11 attack against the US. A combatants political status does not exempt them from self-defense actions Jahagirdar, Om. Attorney and legal analyst. Targeted Killing, Not Assassination: the legal case for the United States to Kill Terrorist Leaders. University of Virginia School of Law. Published December 1, 2008. By using the words political assassination it would seem that the order prohibits the assassination of foreign officials for their political views, actions, or statements. Hence, EO 11905 does not superficially prohibit the killing of foreign terrorist leaders in self-defense because any action would not have been taken because of [that] officials political views, actions, or statements but, rather, because the United States deemed it necessary to defend itself against such an attack. By definition, the killing would not be a political assassination. Executive Order 11905 and its progeny, should be interpreted to allow the US to kill terrorist leaders of states or entities that the US has been introduced into hostilities [with] or situations pursuant to the provisions of the War Powers Resolution. A wartime justification is necessary when killings might be targeted against individuals who are both enemies of the US and are political leaders of a state or entity. The perfect example is Osama Bin Laden the US would not order his killing simply because of his verbalization of hate against America, but rather because of his leadership of al-Qaeda, which has attacked America. In essence, a persons political status could not shield them from retribution because the laws of armed conflict and general international law provisions would apply rather than the executive order In 1981, President Reagan enacted Executive Order 12333 (EO 12333) and it is this executive order that still applies today. EO 12333 carries forward the exact language of EO 12036 and clarifies that any decision to assassinate a foreign leader could only be approved by the president. However, as noted elsewhere in this article, EO 12333 does not prohibit the targeted killing of foreign terrorist leaders because of the wartime distinction. When the US is at war with states or entities, the executive order would not apply because the killing would not be an assassination. Targeted killing is not extra-judicial killing Guiora, Amos. Professor of Law at Case Western University School of Law. Targeted Killing as Active Self-Defense. Case Western University School of Law Symposium. October 8, 2004. It is critical to distinguish the concepts of targeted and extra-judicial killing. Targeted killing occurs when arrest of the individual poses an extraordinary operational risk and extra-judicial killing occurs when the incapacitation of political opponents through arrest is clearly operationally possible. Furthermore, extra-judicial killings are domestic in orientation, and while they violate civil rights, they are not part of counter-terrorism, where the State must take all measures to protect itself against terrorists whose modus vivendi is killing and not

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political dissent. Targeted killing is a form of preemption and is not punitive in its purpose. Thus, the connotations of extra-judicial killing are inappropriate in the context of targeted killing. Targeted killing does not occur during peacetime Jahagirdar, Om. Attorney and legal analyst. Targeted Killing, Not Assassination: the legal case for the United States to Kill Terrorist Leaders. University of Virginia School of Law. Published December 1, 2008.

When the US kills individuals during peacetime, it should be considered an unlawful murder, and thus an assassination since there is manifest evidence to suggest that peacetime assassination has been illegal since the Middle Ages. While there is no specific international agreement that forbids assassination, it is highly likely that the assassination of a foreign leader in peacetime with no provocation would therefore be a prima facie violation of basic international law. However, when the US kills individuals within a military framework, during war authorized by domestic or international law, there can be no assassination of enemies who are responsible for an acknowledged military threat. Targeted killing does not apply to those individuals who are under state control or domain McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011

However, there are important factual distinctions between Hamdi and Aulaqi to balance against the similarities. Although both cases fit the general category of due process rights in the context of national security concerns, the circumstances of the Hamdi holding limit its application to Aulaqi. Hamdi was captured in a theatre of war and originally accused of aiding the Taliban in hostilities against the United States. But once he was moved to holding brigs within the United States, Hamdi was fully secured under government control. Therefore, at the time of the Supreme Courts decision, Hamdi was not an imminent threat to national security and was completely subject to government authority. Constitutional rights abroad are not guaranteed McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011

Despite the fact that Aulaqi was hiding in Yemen, the Fifth Amendment still protected him. The Supreme Court has held that Americans enjoy the same constitutional protections abroad as in American territory, unless the application of the Bill of Rights would prove impracticable and anomalous. The rationale for this principle is that although Americans are not completely

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without constitutional protections abroad, it may not always be feasible to ensure all of these protections. The application of the Bill of Rights abroad must take into account the particular circumstances, the practical necessities, and the possible alternatives of the situation at hand. Analyzing Aulaqis Fifth Amendment rights is especially complex given the many political, economic, and security problems in Yemen at the time of his killing.

On balance, targeted killing is the lesser evil Lethal force is a more effective and precise means of dealing with terrorism Rittgers, David. Legal and Policy Analyst. V-OBL Day. The CATO Institute Online. http://www.cato.org/pub_display.php?pub_id=13067. Published May 2, 2011. Targeted killing is an essential component of the fight against al Qaeda. Much of the public debate has focused on the use of unmanned aerial vehicles to carry out targeted killings a misplaced emphasis on means rather than ends. International counterterrorism is primarily an intelligence campaign, and the select application of lethal force is more effective than the deployment of large military units to Muslim nations. A scalpel, not a sledgehammer, should be our primary counterterrorism tool. There are drastic humanitarian benefits to targeted killing Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/Files/rc/papers/2009/0511_counterterrorism_anderson/0511_ counterterrorism_anderson.pdf. Published May 11, 2009. The humanitarian benefits of precision targeting are far more obvious than the more remote and abstract suppositions of their humanitarian costs. Their direct policy consequence is to introduce greater discrimination in targeting than full-scale military assault and large-scale war permit. Advancing technology allows for more discrete surveillance and, therefore, more precise targeting that is better able to minimize collateral civilian damage. This is a good thing for those who do not want to kill innocent civilians. Indeed, humanitarians long called upon advanced militaries to shift from designing more destructive weapons systems to designing more discriminating ones; weapons designers have been seeking to comply over decades, and there is something perverse about now criticizing their evolving efforts as making war so much less destructive and so discriminating as to be too easy to undertake. The result is a strategic and moral incentive for targeted killing and for increasing the quality of technology to make targeted killings both more precision-targeted and more standoff. Precision targeting and standoff delivery are each independently desirable and, in combination, considerably increase this incentive. Targeted killing allows for the same outcomes without exposing serve men and civilians to massive risk

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Billitteri, Thomas. Researcher and Writer for the CQ Researcher. Drone Warfare. The Congressional Researcher Online. http://library.cqpress.com.proxy.mul.missouri.edu/ cqresearcher/document.php?id=cqresrre2010080600&type=hitlist&num=0. Published August 6, 2010. The Obama administration has embraced the counterterrorism strategy of targeted killing using drone aircraft for many reasons. One is that it is successful and, as senior Obama officials have repeatedly said, one of the very few, if not the only, option for direct attack against Al Qaeda leadership. A second reason why the Obama administration has embraced targeted killing is that it is targeted. The technology represents a step forward in discrimination in targeting that should be understood as a major humanitarian advance. Any collateral civilian death is tragic, but the alternative in Pakistan and Afghanistan is not non-violence but instead a rolling artillery barrage by the Pakistani army, with the results already seen in its campaign in the Swat Valley. For 25 years, humanitarian advocates have been urging the United States to come up with less damaging and more discriminating ways of waging war. Targeted killing from drones is an enormous humanitarian step forward in that effort. Criticism that it still allows civilian collateral deaths is merely to engage in the fantasy game of so what have you done for me lately? Worse still is the claim that it allows the United States. to use violence without exposing its own people to risk. Not subjecting U.S. servicemen and women to unnecessary risk, while ratcheting down risk to civilians, is a bad thing? Why? Targeted killing is philosophically consistent with other current practices Innocent civilians are subject to harm regardless of the type of military engagement Guiora, Amos. Professor of Law at Case Western University School of Law. Targeted Killing as Active Self-Defense. Case Western University School of Law Symposium. October 8, 2004.

Active self-defense (in the form of targeted killing), if properly executed, not only enables the State to more effectively protect itself within a legal context but also leads to minimizing the loss of innocent civilians caught between the terrorists (who regularly violate intemational law by using innocents as human shields) and the State. "[I]n time of war or armed conflict innocents always become casuahies. It is precisely because targeted killing, when carried out correctly, minimizes such casualties that it is a preferable option to bombing or large-scale military sweeps that do far more harm to genuine noncombatants." Active self-defense aimed at the terrorist contains an element of "pinpointing": the State will only attack those terrorists who are directly threatening society. The fundamental advantage of active self-defense subject to recognized restraints of fundamental international law principles is that the State will be authorized to act against terrorists who present a real threat prior to the threat materializing (based on sound, reliable and corroborated intelligence information or sufficient criminal evidence) rather than reacting to an attack that has already occurred. Casualties do not render targeted killing immoral

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Kasher, Asa. Professor of Ethics. Assasination and Preventative Killing. The John Hopkins University Press Online. http://muse.jhu.edu/journals/sais_review/v025/25.1kasher.html. Published 2005. Under certain conditions, it is morally justified to perform an act of targeted prevention of terror that involves killing terrorists even if collateral damage is expected.26 We reject the view that such acts are always unjustified because they inflict collateral damage. In order to firmly grasp the grave problem under consideration, consider circumstances under which you have to press one of two buttons that are in front of you and solely shoulder responsibility for the results of your decision to press one of them rather than the other. If you press button 1, the state does nothing against an ongoing act of terror, and, as a result, a bomb explodes in a mall and citizens of the state are killed. If you press button 2, the state performs a military act of targeted prevention of terror, which kills the terrorist in addition to bystanders who are not involved in terror, but no citizen of the state is injured since the act of terror has been aborted. Which button should you press? Indeed, such circumstances are of a tragic nature. Each course of action involves death of people who have jeopardized the life of nobody. Each course of action involves a painful toll to be lamented. Each course of action ought to leave us with strong guilt feelings, even if it is the right course of action. According to norm B.2(d), of priorities on grounds of state duties, if you represent the state, you ought to press button 2 for several moral reasons. The evidence of civilian casualties in Pakistan is highly contested Billitteri, Thomas. Researcher and Writer for the CQ Researcher. Drone Warfare. The Congressional Researcher Online. http://library.cqpress.com.proxy.mul.missouri.edu/ cqresearcher/document.php?id=cqresrre2010080600&type=hitlist&num=0. Published August 6, 2010. Kilcullen's testimony and pronouncement of 700 Pakistani civilian deaths is oft cited in the debate over drones, but C. Christine Fair, an assistant professor in Georgetown University's Security Studies Program, wrote this spring that the conclusion that drone strikes produce more terrorists than they eliminate would be a damning argument if the data weren't simply bogus. She argued that the only public data on civilian casualties from drone attacks in Pakistan come from the Pakistani Taliban and that high-level Pakistani officials have conceded to me that very few civilians have been killed by drones, and their innocence is often debatable. Philosophically speaking war and targeted killing both seek prevention Yoo, John. Professor of Law at the University of California School of Law, Berkley. Assassination or Targeted Killing After 9/11. New York Law School Law Review. Published 2012.

War, however, brings forth a different set of concerns. When a nation goes to war, it seeks to defeat the enemy in order to prevent future harms to society inf licted by enemy attacks. Because war deals with prospective concerns, it must rely less on exact information and more on probabilities, predictions, and guesswork. Often the military attempts to destroy a building

19

because it estimates with varying degrees of certainty that enemy soldiers are hiding within it or enemy munitions are located there. It does not wait to attack until it has proof beyond a reasonable doubt, or even probable cause; that would risk allowing the enemy forces to escape, to strengthen their position, or to live to attack the countrys own forces or citizens another day. War by its nature seeks prevention, not punishment. Targeted killing involves the same sort of calculations as other engagements with lethal force Yoo, John. Professor of Law at the University of California School of Law, Berkley. Assassination or Targeted Killing After 9/11. New York Law School Law Review. Published 2012. Using force to prevent future harms can never be done perfectly. No military can choose the right target every time, nor can any military hit its target every time. Soldiers might shoot someone who turns out to be a noncombatant, but was lurking around a known enemy location, or they might fire their cannons at the wrong building. In domestic law enforcement, which is governed by tougher standards, a police officer who fires his weapon on the reasonable belief that his attacker holds a gun is not punished by law, even if it turns out that his belief was in error. We ask that our soldiers make reasonable decisions when they choose their targets and decide how much force to use. Similarly, our policymakers consider all of these factors when they decide whether to use deadly force against a suspected al-Qaeda member. They must balance matters like the effect of an attack on allied governments, local populations, and nearby civilians against the benefit of eliminating an al-Qaeda leader and frustrating the plans he might have been organizing, while also keeping in mind the probability of success in the attack. Targeted killing is necessary Targeted killing aids to the defense of innocent citizens Kasher, Asa. Professor of Ethics. Assasination and Preventative Killing. The John Hopkins University Press Online. http://muse.jhu.edu/journals/sais_review/v025/25.1kasher.html. Published 2005. The gist of Principle A.1 is commonly accepted as governing just international relationships between states.15 Defense of the life and well-being of citizens against danger posed by terror is commonly held to be a prime duty of a democratic state. We take the defense of citizens from terror to be not only a prime duty of a democratic state but also, under present circumstances, as the prime duty, since the danger posed by terror is a relatively new one, at least in some major respects, and is of a special nature. To the extent that it is a new danger, the state has to create new means of defense or adapt those available to the new duty of defense. Effective defense of its citizenry is sanctioned by a democratic state's moral principles. The means a democratic state may use in order to serve such an end should also be justified by the same principles. The duty of protecting human dignity is therefore not only a source of a duty to fight against terror but also a source of a constraint on what the state does against terror. The state must be able to engage terrorists if self-defense is to be achieved

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Guiora, Amos. Professor of Law at Case Western University School of Law. Targeted Killing as Active Self-Defense. Case Western University School of Law Symposium. October 8, 2004.

Because the fight against terrorism takes place in what has been referred to as the "back alleys and dark shadows against an unseen enemy," the State, in order to adequately defend itself, must be able to take the fight to the terrorist before the terrorist takes the fight to it. From experience gained over the years, it has become clear that the State must be able to act preemptively in order to either deter terrorists or, at the very least, prevent the terrorist act from taking place. By now, we have learned the price society pays if it is unable to prevent terrorist acts. The question that must be answered^both from a legal and policy perspectiveis what tools should be given to the State to combat terrorism? What I term active selfdefense would appear to be the most effective tool; that is, rather than wait for the actual armed attack to "occur" (Article 51), the State must be able to act anticipatorily {Caroline) against the non-State actor (not considered in Caroline). Refusing to engage in targeted killing would grant terror organizations a license to kill Guiora, Amos. Professor of Law at Case Western University School of Law. Targeted Killing as Active Self-Defense. Case Western University School of Law Symposium. October 8, 2004.

Nevertheless, terrorism does exact significant social, economic and political costs to which the State must respond. The issue is therefore to whom and how the State responds. The terrorists involved in suicide bombings undoubtedly present the most serious disturbance to public order (economy, daily life, public safety). Therefore, once these individuals are defined as legitimate targets and there are no alternatives, the military necessity test, which requires a need to protect or ensure public order, is clearly met If the State were to not respond-in-kind it would, in essence, be granting terrorists a form of immunityyou can attack us but we cannot or will not attack you. It is important to understand that terrorism is clearly a form of warfare-the questions that stand before us are how do we define this war, who are we fighting, and how do we fight them. The nature of terrorist organization provokes a different response than full out warfare Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/File s/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. There is a fundamental strategic and moral rationale lying behind both the policy trend toward targeted killing and toward the use of robotic and stand-off platforms such as the Predator drone as the preferred means of effectuating it. The United States has found the limits of how extensively it can wage full-scale wars with its military; even if it wanted to take on more wars, it has logistical and political limits. In addition, the United States has discovered that full-on war is useful principally against regimes. Full-scale, large-scale warfare of the kind waged in

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Afghanistan and Iraq is useful primarily for bringing down a government that, for example, might harbor or support terrorists, or which might be believed to be willing to supply terrorists with materials for weapons of mass destruction. While this tool has a crucial strategic place in national counterterrorism policy, by its nature, its role is about states and state-like groups. Large-scale military operations are less useful directly against transnational terrorists, who are few in number, dispersed across populations and often borders, disinclined to fight direct battles, and more efficiently targeted through narrower means. The fundamental role of overt warfare in counterterrorism is to eliminate the regimes that provide safe haven to terrorist groups; terrorist groups themselves can be strategically understood as an extreme version of a guerrilla organization engaged in a strategy of logistical raidingin which civilian morale and the resulting manipulation of political will is the logistical target. Logistical raiders typically need a safe base to which to retreat, and full-scale war is most useful in eliminating such safe bases and convincing other regimes not to provide them. But it is not usually an efficient way of going directly after the transnational terrorist groups themselves. Aggressive terror maneuvers require more aggressive counter-terrorist policy Guiora, Amos. Professor of Law at Case Western University School of Law. Targeted Killing as Active Self-Defense. Case Western University School of Law Symposium. October 8, 2004. Since 2000, over 1000 Israelis have been killed in over 20,000 terror attacks that range from shootings to suicide bombers intent on killing the maximum number of innocent civilians. Palestinian terror organizations use weapons appropriate to armed conflict such as guns and missiles. This should be compared to the Intifada, where the weapons of choice were rocks, Molotov cocktails and knives."* In addition, according to intelligence reports based on seized Palestinian documents, the current armed conflict was carefully planned in advance (this paper will not address Arafat's direct or indirect role in the preparations but there is little doubt that such an armed eonfliet eould not have been so planned without his partieipation and approval) and was not a spontaneous response either to the failed Camp David talks or to Ariel Sharon's visit to the Temple Mount. In light of the fact that Israel is under armed attack as evidenced by both the nature and quantity of the attacks, its response has been fundamentally different than its response to the Intifada. During the Intifada, thousands of Palestinians were administratively detained, while others were brought to trial or deported. The present conflict has been characterized by a more aggressive operational response, required in large part by the Palestinian terrorist groups' decisions to attack innocent civilians with suicide bombers. Targeted killing accounts for changes in the face of modern warfare Yoo, John. Professor of Law at the University of California School of Law, Berkley. Assassination or Targeted Killing After 9/11. New York Law School Law Review. Published 2012. Using targeted killing as a primary tactic also takes better account of the new kind of war facing the United States. The United States has prevailed in conventional wars by invading the territory

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of an enemy nation, destroying its armed forces on the battlefield, and capturing key cities and population centers. It has won by outproducing its opponents. During the lead-up to World War II, President Franklin D. Roosevelt aptly declared the United States to be the great arsenal of democracy. Historically, the United States has deployed its large productive capacity and population in war, and its large, well-equipped and well-supplied armies and navies have, generally speaking, overwhelmed the soldiers of the other side. The United States cannot win the war on terrorism by producing more tanks, fielding more army divisions, or setting more carrier battle groups and submarines to sail than this enemy. This did not work in Vietnam and it will not work against the even more diffuse enemy of today. Military plans based on traditional deterrence and the threat of retaliation will not be effective against this terrorist network because it has no territory or armed forces to crush, and its members welcome death. The amount of actual force needed to frustrate or cripple al-Qaeda is quite small, and well within the capabilities of a single division of U.S. troops. Indeed, the problem is not with the strength of Americas power, but how and where to aim it. Al-Qaeda does not mass its operatives into units onto a battlefield, or at least it has not after its setbacks in Afghanistan in the fall and winter of 2001. Instead, al-Qaeda will continue to disguise its members as civilians, hide its bases in remote mountains and deserts or among unsuspecting city populations, and avoid military confrontation. The only way for the United States to defeat al-Qaeda is to destroy its ability to functionby selectively killing or capturing its key members. Arresting terror hostiles is futile to impossible Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/Files/rc/papers/2009/0511_counterterrorism_anderson/0511_ counterterrorism_anderson.pdf. Published May 11, 2009. Law enforcement utilized outside the United States, on the other hand, has also discovered its outer limits. Many debates are still to be had over the rights of alleged terrorists once in U.S. custody. But whatever they are, few would argue that going out to arrest terrorists in, for example, Pakistans tribal zones is a winning policy or a serious option. The same is true in Somalia and other places, and it will be true in other places in the world in the future. Often the necessary authorities abroad are unwilling or unable to act to stop terrorism Visbal, Janiel. Professor at the Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Center Herzliya. Legal and Democratic Dilemmas in the Counter-Terrorism Struggle. Universidad del Norte. Published 2011.

A legal dilemma presented in this law enforcement model is based on the lack of legal jurisdiction of the State that has been suffering from terror attacks, and that the individuals planning and supporting such attacks are acting far away from the jurisdiction of their law

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enforcement authorities. This situation results in the complete dependency of the victim state on the help and support provided by those third countries harbouring terrorist involved in the attacks. In many cases those third countries have too poor or weak authorities to conduct a serious struggle against these terrorist organizations, or they are just simply unwilling to act against them. Unreliable and ineffective foreign militarys has made targeted killing a desirable tool Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/Files/rc/papers/2009/0511_counterterrorism_anderson/0511_ counterterrorism_anderson.pdf. Published May 11, 2009.

None of this alters the equally impeccable strategic logic underlying the use of law enforcement mechanisms in some circumstances. Nor does it alter the logic behind other forms of intelligence activities, such as surveillance or financial interdiction, or even the use of open, full-on war. We can by no means rule out the toppling of a regime in pursuit of counterterrorism during the next ten or twelve years. But these are not disjunctive policies. Targeted killing is likely to increase as a policy preference as fullscale wars decrease in number and intensity and become less desirable as a means of effectuating counterterrorist objectives. Bushs Iraq adventure has surely reduced the American appetite for invading the tribal regions of Pakistan, for example, and something has to fill the gap. That need is partly what has augmented the Predators appeal, especially to the Obama Administration. No doubt there will be political pushback claims that the effect of the Predator campaigns in Pakistan are backfiring by mobilizing Pakistani anger at civilian casualties, for example. But given the political unreliability and military ineffectiveness of the Pakistani army and its preference for artillery barrages over focused counterinsurgency, these arguments are not likely to persuade. Terrorism has driven Israeli counterterrorism strategy outside the scope of traditional criminality Visbal, Janiel. Professor at the Lauder School of Government, Diplomacy and Strategy,Interdisciplinary Center Herzliya. Legal and Democratic Dilemmas in the CounterTerrorism Struggle. Universidad del Norte. Published 2011.

The second intifada started after the Camp David negotiations failed. Until then, Israel saw and dealt with terrorism as a criminal behavior and managed it through the law enforcement model. As any other criminal behaviour the government expended great efforts in order to catch those responsible for the commission of terror acts, and take them out of the streets. This outbreak presented a violence scenario like anything before, and it was completely different from the first intifada in many aspects. The main weapons during the upraising of the First Intifada were stones, which limited the scale of violence to a minor level. However, the warfare power used by Palestinian terrorists during the Second intifada included of all kinds of high level military hardware, and a much more terrifying strategy: suicide bombings. Another great difference

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between these intifadas was based in the territorial aspect of the threat of violence, which in the second intifada covered the entire State of Israel, facing almost daily terror attacks in the different regions throughout the country. The amount of people under terrorist threat was without precedent for the Israeli government. Among 6300 Israelis were injured and almost 1000 were killed during the second intifada (Barber, 2009, p. 83). This amount of casualties that resulted in injury or death represents nearly the 1% of the Israeli population, which may seem small. However, applying the same percentage to the United States population it would compromise around 310,000 U.S citizens being killed or wounded by terrorist attacks. As a result of this, the Israeli government drove its counterterrorism struggle in a war-like way rather than the ordinary criminal scope. Targeted killing has been a necessary response to Israeli terrorism Visbal, Janiel. Professor at the Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Center Herzliya. Legal and Democratic Dilemmas in the Counter-Terrorism Struggle. Universidad del Norte. Published 2011. As a democracy, the issue of the legality of targeted killings has been of great importance within Israel. The reasoning for targeting killings to exist in Israels security strategy is based on the fact that since its inception, the country has suffered sensitive security threats posed by individuals the State is unable to capture. The necessity of punishment for those responsible of the terror attacks against Israel and its citizens, and the need to prevent future acts of terror was strongly reinforced by the murder of members of the Israeli Olympic team in the 1972 Munich Olympics games. This historical episode showed that some terrorists and intellectual authors behind this act were harboured in countries which simply were unwilling or incapable of pursuing them According to Ganor (2008, p. 117) after the massacre of 11 Israeli athletes by Black September, the Israeli government, under the authority of former Prime Minister Golda Meir, formed what it was known as Committee X. Through this committee, Israel authorized the killings of several Palestinian terrorist leaders that were involved in the planning, financing and perpetration of the Munich massacre, under what is was called operation Wrath of God. Targeted killing is a last resort to protect citizens ex. Israel Guiora, Amos. Professor of Law at Case Western University School of Law. Targeted Killing as Active Self-Defense. Case Western University School of Law Symposium. October 8, 2004.

Targeted killing reflects a deliberate decision to order the death of a Palestinian terrorist. It is important to emphasize that an individual will only be targeted if he presents a serious threat to public order and safety based on criminal evidence and/or reliable, corroborated intelligence information clearly implicating him. Intelligence information is corroborated when it is confirmed by at least two separate, unrelated sources. There also must be no reasonable alternative to the targeted killing, meaning that the international law requirement of seeking another reasonable method of incapacitating the terrorist has proved fruitless.^ According to the Agreements signed with the Palestinians, the Palestinian Authority and Israel are to be partners

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in fighting terrorism. The practical significance of this obligation undertaken by the PA is that they are supposed to arrest those who endanger the public order. Given that the PA does not arrest Palestinian terrorists, the burden of arresting them falls solely on the IDF.^ However, if arresting a Palestinian terrorist unnecessarily endangers an IDF unit and there are no other operational alternatives to keep the terrorist from carrying out his plan (about which the IDF has sound and reliable corroborated intelligence information), a decision may well be made to target both that particular terrorist and others, as will be discussed, who are involved in the planning of suicide bombings. [ ] Targeted killing is effective Targeted killing merely enhances the effectiveness of the overall campaign Waxman, Matthew. Adjunct Senior Fellow for Law and Foreign Policy. The Targeted Killing Debate. Council of Foreigh Relations Online. http://www.cfr.org/international-peace-andsecurity/targeted-killings-debate/p25230. Published June 8, 2011. A targeted killing campaign, of course, is not a strategy by itself. At home and in most countries in the world, the United States can simply ask its allies to monitor suspected terrorists and arrest them--and, in so doing, gain intelligence--should they prove dangerous. And efforts to delegitimize terrorists and strengthen weak governments must also continue and become stronger. However, killing terrorists can complement other instruments of U.S. national policy. The best strategy in targeting terror organizations is to target individuals Yoo, John. Professor of Law at the University of California School of Law, Berkley. Assassination or Targeted Killing After 9/11. New York Law School Law Review. Published 2012. These criticisms rest on profound misconceptions of the nature of the war on terrorism and the rules of warfare. Because the United States is at war with al-Qaeda, it can use forceespecially targeted forceto conduct hostilities against the enemys leaders. This does not violate any American lawconstitutional, congressional, or presidentialor any ratified treaty. Precise attacks against individuals have long been a feature of warfare. These attacks further the goals of the laws of war by eliminating the enemy and reducing harm to innocent civilians. Legality aside, targeted killing or assassination can be the best policy in certain circumstances. In the new type of war thrust upon the United States by the 9/11 attacks, the enemy resembles a network, not a nation. The better strategy is to attack the individuals in that network; there are no armed forces to target, and destroying training camps alone will amount to no more than pounding sand. Even low level targeted killings can greatly inhibit the enemy Waxman, Matthew. Adjunct Senior Fellow for Law and Foreign Policy. The Targeted Killing Debate. Council of Foreigh Relations Online. http://www.cfr.org/international-peace-and-

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security/targeted-killings-debate/p25230. Published June 8, 2011. Less dramatic, but no less important, is a campaign against lieutenants and bomb-makers, passport-forgers, travel-facilitators, and others whose skills cannot easily be replaced--essentially what the United States has been doing since the end of the Bush administration in Pakistan through drone strikes. When these individuals are hit, and hit again, it is possible to exhaust the terrorist group's bench. During the Second Intifada, Israel found that initial strikes against Palestinian cell leaders and bomb-makers had only a limited impact on the terrorist groups it faced, as eager replacements quickly took over. Eventually, however, there was a bottom to the barrel and less skilled, less motivated people took over. Targeted killing makes terrorist organization less effective Waxman, Matthew. Adjunct Senior Fellow for Law and Foreign Policy. The Targeted Killing Debate. Council of Foreigh Relations Online. http://www.cfr.org/international-peace-andsecurity/targeted-killings-debate/p25230. Published June 8, 2011. An often-neglected impact of killing terrorist leaders is on what they and their group do not do. When a campaign against lieutenants is in full-gear, they must spend much of their time in hiding or moving from place to place. Communicating by phone becomes risky, and the circle of trust shrinks, making meetings or large-scale training harder to pull off. The hunt for spies within can become all-consuming. In the end, leaders are less able to lead, and the group's cohesion and strategic direction suffer. Targeted Killing can cripple enemy operations Waxman, Matthew. Adjunct Senior Fellow for Law and Foreign Policy. The Targeted Killing Debate. Council of Foreigh Relations Online. http://www.cfr.org/international-peace-andsecurity/targeted-killings-debate/p25230. Published June 8, 2011. Killing terrorist leaders and key lieutenants not only brings justice to our enemies, but can devastate the group in question. Killing a leader like bin Laden removes a charismatic yet pragmatic leader--one who succeeded in transforming a small group into a household name and proved time and again he could attract recruits and funding. His replacement, be it Ayman alZawahiri or another senior al-Qaeda figure, may prove less charismatic and less able to unify this fissiparous movement. Some existing affiliates and cells may split off, and the core might be eclipsed by rivals. Targeted killing is permissible to preclude greater atrocities Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003. Can killing a regime's leader be morally justified? If a leader's death would prevent the murder, torture, serious injury, or continued suffering of many innocent people, then killing that leader is

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clearly the best option, at least according to some. Alternatively, large-scale use of force or devastating economic sanctions might be employed, but such actions are likely also to harm the same individuals who have already suffered at the hands of the dictator. If international legal principles based on moral considerations allow states to use deadly force in self-defense, the same principles should provide for the use of deadly force in defense of others. If an Adolf Hitler or a Milosevic had been assassinated, millions of lives would have been saved from genocide. When other policy alternatives are found to be ineffective, international law grants states the right to take action, including removing a leader by deadly force. Targeted killing is permissible to minimize military and civilian casualties Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003

Killing a regime leader and any other leaders in control of the regime takes a far smaller toll on both sides' militaries than conventional war would. Considering the dramatic differences in the numbers of deaths likely to result from the two types of warfarewarfare against a state and warfare against a leadersome, such as Ralph Peter, have criticized any notion of ethical restrictions on killing a leader: "While it was acceptable to bomb those divisions of hapless conscripts, it was unthinkable to announce and carry out a threat to kill Saddam Hussein, although he bore overwhelming guilt for the entire war and its atrocities. ... Where is the ethical logic in this?" Moreover, killing a leader would prevent fewer innocent victims from becoming the collateral damage of an armed conflict. Even with precision-guided weapons, any type of armed conflict will inevitably cause the deaths of innocent victims. Although these victims may not have been direct targets in the conflict, that will matter little other than to provide legal protection to war fighters. Modern warfare is destructive, and the consequences of such wars may reverberate for far longer then the armed conflict itself. A world in which nuclear weapons are no longer the anomaly and WMD are readily available to both state and nonstate actors willing to use them must be especially wary of large-scale war. For those such as Michael Walzer, a contemporary scholar on principles of just war, the military codesprinciples of norms that control behavior in armed conflictmust "first be morally plausible" and "must correspond to our sense of what is right." Only then can such principles, codes, or norms constrain behavior in conflict. Where, exactly, is the senseor moral plausibilityin prohibiting the killing of one individual while allowing for the deaths of thousands of innocent people? Targeted killing is permissible to disrupt the regime's brutal activities Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003.

Strategically removing a tyrannical regime leader may impair followers' ability to operate and carry out any command and control decisions. If the leader is a charismatic individual who

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cannot be replaced easily, his loss is likely to cause confusion and disarray. Particularly in the case of authoritarian regimes, where a single individual is often in power for many years, eliminating that leader is apt to lead to a lack of direction at the top level. Indeed, if a number of potential successors emerge, their vying for control may further exacerbate the disorder. If there is doubt about who perpetrated the killing, speculation may arise about an inside traitor and cause further deterioration among the leadership. The cumulative result of the confusion and disruption may lead to the interruption of operational direction, which, even if temporary, may give enough time to complete a regime change. Depending on the status of the individuals immediately surrounding the regime leader who have command and control authority, removing those individuals by force may become necessary as well. At a minimum, a plan ought to be in place for dealing with those individuals until some stability has been reached. If these individuals resist with deadly force, however, nothing would prevent the armed forces from defending themselves and responding with deadly force. Targeted killing is permissible to avoid complications of taking high-profile prisoners Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003. If a regime leader is eliminated, he will not be in jail nor will he stand trial. The elimination of the leader avoids the potential for acts of reprisal or retribution against the state that holds the leader prisoner. It also prevents the leader from becoming a talisman for his followers or from seeking sovereign immunity for any illegal actions taken while he was head of state. Furthermore, if the leader remains at large or in criminal custody, he may still be able to communicate and to direct and control certain operations. Targeted killing is permissible to prevent WMD use Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003. Once a dictatorial regime leader and his command and control apparatus are eliminated, security forces and armed forces may take action to eliminate WMD that the regime may have acquired. By killing such regime leaders, the threat from these weapons is eliminated once and for all. Further, by using the element of surprise inherent in killing a regime leader, the leader will likely have little or no time to issue orders and coordinate the use of any of these weapons, thus preventing the unnecessary suffering those weapons could have inflicted on civilians and military personnel. By preventing the devastating harm that would befall victims of WMD use and minimizing the feelings of bitterness that would have ensued, the removal of the regime's leader may also bring the two sides closer to a lasting settlement with less of a chance that hostilities will reignite.

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Targeted killing violates rule of law Targeted killing violates existing law McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011 The Presidents supposed authority to conduct targeted killings of Americans is highly questionable. Moreover, the DOJs argument that targeted killing is a political question within executive discretion inaccurately portrays the judiciarys power to review broader questions of law. Yet in addition to these compelling objections to the legal underpinnings of targeted killing authority, targeted killing likely violates existing law as well. Targeted killing is a unilateral government execution that completely circumvents traditional notions of law enforcement and violates even minimum notions of established due process. Targeted killings are inconsistent with democratic ideals Visbal, Janiel. Professor at the Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Center Herzliya. Legal and Democratic Dilemmas in the Counter-Terrorism Struggle. Universidad del Norte. Published 2011. The main core of the legal and democratic dilemma relays on a very simple fact: Those who are been targeted, are been killed without any kind of legal procedure according to modern Civil rights, democratic values and liberal guarantees. The practice of this action is aiming for a final outcome which is the death of an individual or groups of individuals, and death is a permanent punishment that cannot be reversed or appealed. The targeted person is been denied basic principles of modern legal and democratic systems. The individual is unable to challenge any arbitrary state action, controvert evidence involving him in terror acts, challenge any possible witness incriminating him, and been denied of the presumption of innocence until being found guilty thru a fair and impartial trial in a court of law. Target Killing violates the ideals of due process McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011. In August 2010, Aulaqis father, Nasser al-Aulaqi, filed suit against the federal government and requested an injunction against the targeted killing of his son. The complaint alleged that a targeted killing would violate Anwar al-Aulaqis Fifth Amendment right to due process of law before a deprivation of life. In response, the DOJ argued that the decision to target Aulaqi for extrajudicial killing was purely within executive branch authority and that to litigate this matter would require judicial infringement on executive power. Nasser al-Aulaqi asserted that the Executive Branch claimed the power to kill an American without producing any justification. The governments response essentially suggested that, in fact, it had this

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power in the context of counterterrorism and that this power was not subject to judicial review. This Note challenges the statutory and constitutional basis for the governments authority to conduct the targeted killing of Americans and attempts to resolve important legal questions left unanswered by the controversial outcome of Al-Aulaqi v. Obama. Applied broadly, the practical effect of the Aulaqi holding suggests that the president has the unchecked authority to kill Americans accused of terrorism without providing the accused with some minimum form of due process. According to the defendants reasoning in Aulaqi, the governments use of lethal force, even against its own citizens, is shielded from judicial review merely on the assertion that lethal force was necessary to respond to the threat of terrorism The rights to challenge incarceration ought to apply to a death sentence as well McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011

Although the Court did not reach a majority opinion in its decision, a plurality of Justices agreed that the Executive Branch does not have the power to detain an American citizen indefinitely without providing some basic due process protections. A majority of Justices agreed that Hamdi had the right to challenge his detention. Because it is a plurality opinion, the extent of the due process protections required in a federal detention scenario is unclear. But the basic principle of Hamdi is that the Executive does not have the authority to detain an American citizen without some form of due process. If elements of due process are required when the government deprives an American of liberty, is it not logical to conclude that the government must also satisfy due process when depriving an American of life? The court has acknowledged the dilemma between targeted killing and due process McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011 A more thorough overview of the Aulaqi opinion reveals an irreconcilable conflict between due process rights and the CIA targeted killing program. Moreover, the opinion demonstrates the many obstacles, if not the utter futility, of attempting to resolve this critical problem in federal court. Although the court expressed serious concern over the extraordinary nature of Aulaqis claims and the circumstances of the case, it also hesitated to infringe on executive military power or on decisions regarding national security, especially in the absence of any judicially manageable standard. The courts ruling is technically sound in terms of the standing analysis, but it nonetheless resulted in an American citizen targeted for lethal force without any due process of law. Most of the international community agrees that targeted killings are illegal and immoral

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Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. Various European allies have been extremely hostile toward the practice. Swedish Foreign Minister Anna Lindh was among the most outspoken critics of the U.S. targeting of al-Harethi in November 2002. She described the operation as a summary execution that violated human rightsEven terrorists must be treated according to international law. Otherwise any country can start executing those whom they consider terrorists. The criticism is even stronger when the actor is Israelwhich undertakes targeted killing in keeping with the peculiarly long-term, mixed war-security and intelligence-law enforcement nature of its struggleand, incidentally, with far more procedural protections than the United States uses, including judicial review. Then the gloves come off completely in expressions of international hostility to the practice. To be clear, under the standards these groups are articulating, these practices are regarded as crimes by a sizable and influential part of the international community. This is so whether or not these acts are currently reachable by any particular tribunal. As the coercive interrogation debate shows, with Spain and other countries considering prosecutions in their own courts, the trend is toward an expansion of jurisdiction of such tribunals. And Americas claim that these are killings of combatants in an armed conflict governed by either self-defense or IHL does not cut much ice against the views of those who either reject the armed conflict claim outright or else claim that even in armed conflict, human rights standards will apply. Sanctioning targeted killing removes any legal responsibility to and accountability for the accusation at hand Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. A subsequent U.N. special rapporteur on extrajudicial, summary or arbitrary executions summarized his offices view in 2004: Empowering Governments to identify and kill known terrorists places no verifiable obligation upon them to demonstrate in any way that those against whom lethal force is used are indeed terrorists, or to demonstrate that every other alternative had been exhausted. Once again, it is hard to see how targeted killing as a policy could survive in any form with such a legal characterization. Congress should not make intelligence judgements concerning the guilt of suspected terrorists Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009.

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The elephant in the room, so to speak, however, is the standard by which American forces select targets in the first place. This is the core objection to the whole practice, for example, raised by UN special rapporteurs and many otherson what basis does the U.S. conclude that this person is a terrorist? While the substantive standard governing conduct to evaluate a potential targeted killing in relation to innocent third party collateral damage is best drawn from standards in the law of IHL armed conflict, target selection in targeted killing is an intelligence matter. And although military intelligence has much to offer in the way of methodology, military law has much less so. Yet the intelligence community, for many reasons, has had only limited success in picking targets since 9/11although the quality of target selection in the current campaign of Predator strikes by the CIA in Pakistan has clearly gone up. Congress can impose more demands for information to the intelligence committees and greater monitoring of target selection either before or after an attack, but it faces great limits in doing more than that. Congress cannot make the intelligence judgments. Armed conflict has not been credibly defined and thus discussions of targeted killing within the framework of armed conflict are futile Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. But at least if armed conflict means as a matter of law anything more than the mere fact that a party has undertaken to use lethal force, it is not always clear that these killings are actually targeted killings within, rather than outside of, armed conflict. This anomaly reflects different legal meanings and standards, pursuant to different legal instruments and regimes, for the term armed conflict. The problem is not merely that terms have one meaning in the ordinary parlance and another in legally precise contexts. One scholar points out that the recent massive, three volume, four thousand-plus page International Committee of the Red Cross study on the customary law of international humanitarian law included nothing on the definition of the term, because it remains much disputed[and] terminological disputes are rife; several commentators express doubt, for instance, that attacks even by well organized terrorist groups like al Qaeda can constitute armed attacks within the meaning of the UN Charter and, by implication, the international law of self-defense. International lawyers argue over the meaning of armed conflict, starting with the most basic question: Is it a term referring specially to the law of resort to force, or to the conduct of warfare, IHL, or both? Eminent legal scholar and former West Point law professor Gary Solis states flatly, for example, that for a targeted killing to be lawful, an international or noninternational conflict must be in progress. Without an ongoing armed conflict the targeted killing of a civilian, terrorist or not, would be assassinationa homicide and a domestic crime. But that only raises the question of what constitutes an armed conflict in the first place. Targeted killing programs are a license to kill in secrecy

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Billitteri, Thomas. Researcher and Writer for the CQ Researcher. Drone Warfare. The Congressional Researcher Online. http://library.cqpress.com.proxy.mul.missouri.edu/ cqresearcher/document.php?id=cqresrre2010080600&type=hitlist&num=0. Published August 6, 2010. U.N. special rapporteur Alston, in a news release, expressed concern about the secrecy shrouding the CIA drone program. [T]he international community does not know when and where the CIA is authorized to kill, the criteria for individuals who may be killed, how it ensures killings are legal and what follow-up there is when civilians are illegally killed. He added that in a situation in which there is no disclosure of who has been killed, for what reason and whether innocent civilians have died, the legal principle of international accountability is, by definition, comprehensively violated. And in a letter this spring to President Obama challenging the legality of targeted killing of suspected terrorists, the American Civil Liberties Union argued that the entire world is not a war zone, and wartime tactics that may be permitted on the battlefields in Afghanistan and Iraq cannot be deployed anywhere in the world where a terrorist suspect happens to be located.. Targeted killing will never fit into the legal framework of international law Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. To put the matter simply, the international law community does not accept targeted killings even against al Qaeda, even in a struggle directly devolving from September 11, even when that struggle is backed by U.N. Security Council resolutions authorizing force, even in the presence of a near-declaration of war by Congress in the form of the AUMF, and even given the widespread agreement that the U.S. was both within its inherent rights and authorized to undertake military action against the perpetrators of the attacks. If targeted killing in which the international community agreed so completely to a military response against terrorism constitutes extrajudicial execution, how would it be seen in situations down the road, after and beyond al Qaeda, and without the obvious condition of an IHL armed conflict and all these legitimating authorities? In the view of much of the international law community, a targeted killing can only be something other than an extrajudicial executionthat is, a murderif It takes place in an armed conflict; The armed conflict is an act of self-defense within the meaning of the UN Charter, and It is also an armed conflict within the meaning of IHL; and finally, Even if it is an armed conflict under IHL, the circumstances must not permit application of international human rights law, which would require an attempt to arrest rather than targeting to kill. As a practical matter, these conditions would forbid all real-world targeted killings Targeted killing violates international protocols on human rights

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International Human Rights Law does not allow for the targeting of individual combatants Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. Similarly, very few people in the United States, regardless of political persuasion, would regard the Predator strike in Yemen on November 3, 2002which killed six people, including a senior member of al Qaeda, Qaed Salim Sinan al-Harethi, in a vehicle on the open roadas anything other than a good thing, regard less of how one characterizes it legally. Yet the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions described it as a clear case of extrajudicial killing. The legal analysis followed that held by Amnesty International and many othersto wit, that it does not matter whether the targeted killing takes place in armed conflict or not, nor how the United States justifies it legally, because international human rights law continues to apply no matter what and to require that the governments involved seek to arrest, rather than to kill. Targeting specific soldiers violates the moral codes of warfare Yoo, John. Professor of Law at the University of California School of Law, Berkley. Assassination or Targeted Killing After 9/11. New York Law School Law Review. Published 2012. Named killing places certain soldiers outside the laws regulating human behaviour and armed conict. Lieber reserves his wrath for the proclamation and the murder that follow. There are no grounds for tagging specic soldiers for murder. The logic behind Liebers consternation turns on the innocence of enemy soldiers. Killing only in self-defence, all combatants enjoy the presumption of innocence. Soldiers are not criminals; they do not commit murder in the course of ordinary warfare nor can they be tried or incarcerated for their activities. At best, they are agents of the states whose interests they ght to defend. Even in the worst of cases, when these states are blatant aggressors, soldiers retain a measure of innocence on the assumption that many may have been conscripted or, however misguided, believe in the justice of their cause. Innocence, in this case, is not material. No one is suggesting that soldiers do not represent material threats to others. On the contrary, any uniformed soldier is vulnerable. Their innocence, however, is moral. Soldiers may kill in the service of their state and are therefore innocent of any wrongdoing, a sweeping authorization that international law and all nations endorse. Once we name soldiers for killing, however, we upset this innocence with precisely the argument that Lieber presents. Naming names assigns guilt and, as Lieber suggests, proclaims soldiers outlaws. In doing so, named killing places war itself beyond convention. If one side can declare anothers soldiers outside the law, then others are free to follow suit. The war convention disintegrates, and armed conict is no longer amenable to Liebers effort to regulate war by the force of enlightened principles of reason. Named killings, in other words, attack the Enlightenment project at its base.

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Without due process and apprehension error rates are high - remember Guantanamo Bay McKelvey, Benjamin. Executive Development Editor on the Editorial Board for the Vanderbuilt Journal of Transnational Law. Due Process rights and the Targeted Killing of Suspected Terrorists: The Unconstitutional Scope of Executive Killing Power. Published 2011

Currently, there is no specific evidence that the targeted killing program has been used for illegitimate purposes other than national defense and security. However, the Executives exercise of authority in identifying and pursuing threats of terror has produced a worrisome error rate. According to an analysis of Predator drone strikes in Pakistan conducted by the New America Foundation, since 2004, the non-militant fatality rate has been roughly 20 percent. In other words, about one-fifth of those killed by Predator drone strikes have been non-military targets, including innocent civilians. In June of 2010, it was reported that the government lost nearly 75 percent of the cases involving habeas petitions filed by detainees at Guantanamo Bay. This suggests that for the majority of detained enemy combatants, the government has had insufficient evidence for the assertion that the detained individuals were involved in hostilities against the United States. The rate of error in these instances only adds to the concern over the procedural guarantees of the targeted killing process and the need for a more standardized process with a robust system of screening and oversight. Targeted killing has not spared civilian casualties Billitteri, Thomas. Researcher and Writer for the CQ Researcher. Drone Warfare. The Congressional Researcher Online. http://library.cqpress.com.proxy.mul.missouri.edu/ cqresearcher/document.php?id=cqresrre2010080600&type=hitlist&num=0. Published August 6, 2010. In mid-July, the New America Foundation researchers said the drone program in Pakistan had, by their count, reportedly killed at least 1,040 people since 2004, of whom reliable press accounts described about two-thirds as militants or suspected militants, indicating that about onethird were not militants.

Targeted killing violates just war theory Targeted killing logic leaves no state free from the potential aggression of another state Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. The concerns over targeted killings are not, of course, limited to targeting and collateral damage questions. Other states, particularly friendly and allied states, have excellent reason to view these policies with political alarmquite apart from their abstract legal

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assessments of them. Britain, for example, has a certain number of radical imams who appear directly to influence their followers, among other things, to take up jihad in Pakistan and Afghanistan against the U.S. and NATO allies. In purely hypothetical terms, the U.S. might do well to target and kill them in Britain. While the U.S. is obviously not going to do that, it will target al Qaeda with Yemens consent in Yemen, and there are circumstances in which it will target terrorist suspects without territorial state consent. Targeted killing essentially turns the global landscape into a warzone in which no killing vaguely related to self-defense if off limits - United States Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. At times it appears that the United States government has little idea how much its concession of formal requirements of combatancy concedes. Yet when the United States argues that its okay to target someone because he is a combatant, it effectively concedes that the conflict must meet the definition of an IHL conflict for such an attack to be legitimate. By contrast, what the United States needs, and its historic position has asserted, is a claim that self-defense has an existence as a doctrine apart from IHL armed conflict that can justify the use of force against an individual. The United States has long assumed, then-Legal Adviser to the State Department Abraham Sofaer stated in 1989, that the inherent right of self defense potentially applies against any illegal use of force, and that it extends to any group or State that can properly be regarded as responsible for such activities. The active defense theory behind targeted killing means that targeted killing could subjectively be used at any given point in time Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. And the United States also appears to have accepted some evolving version of what has sometimes been called the accumulation of events or active defense view of anticipatory self-defensea variation of the category of self-defense against a continuing threat. As one scholar describes this active defense view: A state may use past practices of terrorist groups and past instances of aggression as evidence of a recurring threat. In light of this threat, a state may invoke [the right of self defense]if there is sufficient reason to believe that a pattern of aggression exists. What may appear to be retaliation is quite often an active defense in which a state uses past terrorist acts to justify launching preemptive strikes.

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Targeted killing logic tramples upon the sovereignty of other nations Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. The trouble, once again, is that much of the world sees the American right of self-defense far more narrowly. Important actors in the community of international law do not even accept that the situations in which the United States has undertaken targeted killing in, for example, Pakistan constitute legitimate self-defense under the U.N. Charter. For example, the eminent international law scholar Sean D. Murphy has a forthcoming article in the influential U.S. Naval War Colleges International Law Studies journal expressing grave and careful concern that, in the absence of meaningful consent by the government of Pakistan, a broad right of self-defense against al Qaeda targets in Pakistan based on the attacks of 9/11, however, isproblematic, since the requirements of necessity and proportionality likely preclude unilateral uses of force against a third State that was not implicated in those attacks. It is unlikely that we would support targeted killing if the United States were on the opposite end of the spectrum - not a universal standard Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. On the other hand, we certainly want a rule that prohibits the 1978 poisoned-tip umbrella killing of Bulgarian defector Georgi Markov by Bulgarian State Security agents on the streets of London or the still-disputed account of the 2006 poisoning of former Russian FSB agent Alexander Litvinenko, also in London, by alleged Russian government agents. These latter cases would surely be covered by the assassination ban were they hypothetical U.S. operations, not to mention not remotely cases of selfdefense though the cases of radical imams who are operationally part of al Qaeda conceivably might be. The distinction has to be more meaningful, obviously, than the mere assertion that its different when our guys do it. The United States, moreover, presumably wants it known that its agents will not undertake targeted killings in the United Kingdom under any circumstances, even if they might in Somalia; there will also be a category of states where strategic ambiguity is preferred. Here a rule of international law will necessarily not avail us; because of the formal equality of states, international law rules will have great trouble separating the Britains from the Somalias. Yet that is precisely what policy as a practical, substantive matter requires. The use of targeted killing is undesirable as a universal policy

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Billitteri, Thomas. Researcher and Writer for the CQ Researcher. Drone Warfare. The Congressional Researcher Online. http://library.cqpress.com.proxy.mul.missouri.edu/ cqresearcher/document.php?id=cqresrre2010080600&type=hitlist&num=0. Published August 6, 2010. Another question is whether the United States, with all of its pioneering technology in unmanned aviation, will itself fall prey to rogue actors who get their hands on the same technology. What about other countries doing this back at us? asks Radsan, the law professor and former CIA lawyer. Think of the Chinese or Iran. It is frightening. Now go further: Imagine if the Taliban or Al Qaeda get the ability to launch drone attacks. If we have too many drones, it could be bad for everybody. Targeted killing is immoral Terrorists are political figures targeted killing is assassination Visbal, Janiel. Professor at the Lauder School of Government, Diplomacy and Strategy, Interdisciplinary Center Herzliya. Legal and Democratic Dilemmas in the Counter-Terrorism Struggle. Universidad del Norte. Published 2011.

Bringing in mind again that the latter concerns the removing of political leaders for political purposes, one could argue that indeed, terrorists are figures evidently outside any political hierarchy. Does this mean, however, that there is no political purpose at all? The underlying problem is that it has been notoriously difficult to define the concepts of terrorists or terrorism. Nevertheless, there have been various attempts. One example describes terrorism as the deliberate causing of death, or other serious injury, to civilians for political or ideological ends [28, p. 175]. From this it follows that terrorists are largely viewed as such due to their political engagement. Hence, the argument that their elimination is apolitical and therefore not assassination is of dubious merit [6, p. 280]. Targeted killing raises fundamental moral objections Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003. Times may have changed, but in 1976, the Church Committee concluded that assassination "violates moral precepts fundamental to our way of life ... traditional American notions of fair play" and is not an acceptable foreign policy tool. 34 Irrespective of legal considerations and notwithstanding any policy considerations that support killing foreign leaders, consensus in the international community has historically held that it is an inappropriate means of conducting foreign policy. As far back as 1598, scholars such as Alberico Gentili condemned it on moral grounds, calling it a "shameful" and "wicked" practice and arguing that objectives of war should be achieved by valorous means. 35 Even in light of some recent congressional support to rescind Executive Order 12333's ban on assassination, a significant outcry might arise in Congress

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nonetheless if the president were formally to authorize killing a leader, whether at a time of war or peace. Targeted killing is un-proportional Kasher, Asa. Professor of Ethics. Assasination and Preventative Killing. The John Hopkins University Press Online. http://muse.jhu.edu/journals/sais_review/v025/25.1kasher.html. Published 2005. A common objection to targeted prevention of terror takes seriously the quantitative connotation of the notion of "proportionality." According to the proposed norm of priorities on grounds of duties (B.2(d)), the state has to give preference to saving the life of a single citizen even if the collateral damage caused in the course of protecting him or her is much higher in number. This result seems unacceptable to some people. Our rejoinder rests on the distinction between a moral evaluation of a single act and a moral evaluation of an activity. It is well known that terrorists are usually not reluctant to operate in the vicinity of persons not involved in terror. This is their mode of operation, not accidentally, but deliberately and regularly. We are familiar with the terrible phenomenon of terrorists using their children and neighbors as human shields. If such behavior grants a terrorist, who is known on grounds of appropriate intelligence to play a crucial role in activity of terror, an immunity from military attack, it would mean that he or she has thus mastered a mode of operation that enables terrorists to kill as many citizens of the state as they wish. Hence, when only a single act of targeted prevention of terror by killing the terrorist is considered, the possibility exists that the number of casualties of the collateral damage is much higher than the number of saved citizens who are jeopardized by that single act of terror. However, consideration of a single act rather than the whole mode of activity is morally wrong. It is not the benefit gained by preventing a single act of terror that should be considered but the cumulative benefits gained by preventing a series of acts of terror to be committed if the terrorist enjoys immunity from military attack. Consideration of accumulative benefits will obviate the difficulty raised by the apparent disproportionality. Targeted killing programs are counterproductive Targeted killing removes certain moral calculations of war making violence more likely Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. This is particularly so given that targeted killing has come in for a barrage of criticism, legal and ethical, much of which seems perversely motivated by the fact that it can be more discriminate than full-scale military assault. The fear seems to be that targeted killing using Predators and other robotics systems lower[s] the threshold for violence. It makes violence too easy to undertake. The same criticism is offered of evolving robotic technology that increasingly allows targeted uses of force without having to risk ones own personnel. Not using ones own personnel allows a party to attack without the fear of counterassault that might increase

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the need to use greater amounts of force and cause greater collateral damagebut it also, so it is sometimes argued, thereby reduces the inhibitions on the decision to use force. Military technology theorist P.W. Singer, for example, says of robotic unmanned weapons systems: When faced with a dispute or crisis, policymakers have typically regarded the use of force as the option of last resort. Unmanned systems might now help that option move up the list, with each upward step making war more likely. Targeted killing has increased the risk of insurgency amongst the Taliban Waxman, Matthew. Adjunct Senior Fellow for Law and Foreign Policy. The Targeted Killing Debate. Council of Foreigh Relations Online. http://www.cfr.org/international-peace-andsecurity/ targeted-killings-debate/p25230. Published June 8, 2011. In the summer of 2009, the friend of a veteran Afghan researcher on the Taliban was accused of spying. He was a known figure in his district, Zurmat, in Paktia province and was not too frightened when he was summoned to the "court," which was made up of elders that included a couple of Taliban representatives. It found him innocent. A year later, in the summer of 2010, a spate of suspected spies were murdered in Zurmat, their throats slit "like sheep" by unknown killers. The judicial system, however rudimentary, had broken down. The researcher linked the violent shift to a general weakening of local Taliban command and control, and blamed the U.S. policy of targeted killing and detention of field commanders ("kill or capture") in Afghanistan. The local and indeed regional Afghan leadership no longer had the clout to discipline Pakistani Waziris and other foreign jihadists--what the researcher called "criminal Taliban"--who had streamed across the border from Pakistan. The foreign jihadists, in particular, have few scruples in dealing with locals--no kindred ties and no fear of retribution. People went to Waziristan to the regional Taliban leadership council to complain about abuses, said the researcher, but they "just shrug their shoulders." This is only one case, but detailed, in-depth research byAAN's Giustozzi and Reuter (PDF) in the north andStrick van Linschoten and Kuehn (PDF) in Kandahar present similar patterns. Targeted killings are intended to weaken the Taliban and thereby protect the population. However, the risk is that the insurgency is not halted, but becomes more fragmented and brutal as younger and more radical commanders, with no memories of a country at peace, step into the shoes of their dead (or detained) comrades. Lack of support for targeted killing actually harms the war on terrorism Anderson, Kenneth. Professor of International Law. Targeted Killing in US Counterterrorism Strategy and Law. The Brookings Institute Online. http://www.brookings.edu/~/media/ Files/rc/papers/2009/0511_counterterrorism_anderson/0511_counterterrorism_anderson.pdf. Published May 11, 2009. More broadly, there are hidden but important costs when the United States is perceived by the rest of the world to be acting illegally. For one thing, it limits the willingness and capacity of other countries to assist American efforts. Detention here again offers a striking example; virtually no other country has assisted in American detention operations since September 11 in large part because of concerns over its legality. The more heavily and aggressively the United States banks on a policy that a strong

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consensus regards as per se criminal, the more tension it can expect in efforts to garner other countries and organizations cooperation in counterterrorism efforts. Absent a strong effort to establish the legitimacy of current American practice, this too, over time, will push the United States away from it. Drone attacks harm civilians, fuel anti-American sentiment. Billitteri, Thomas. Researcher and Writer for the CQ Researcher. Drone Warfare. The Congressional Researcher Online. http://library.cqpress.com.proxy.mul.missouri.edu/ cqresearcher/document.php?id=cqresrre2010080600&type=hitlist&num=0. Published August 6, 2010. So far, the Obama administration has carried out at least 101 drone strikes in Pakistan, more than twice the 45 executed by the Bush administration from 2004 through 2008, according to the New America Foundation, a Washington think tank. Meanwhile, some question the attacks' effectiveness at stemming Al Qaeda and the Taliban insurgency. The Reuters news agency found that the CIA had killed roughly a dozen times more low-level fighters than mid- to high-level leaders since the summer of 2008, when drone strikes in Pakistan intensified. Critics also argue that drone strikes are fueling anti-American sentiment and spurring more terrorism. They point to Faisal Shahzad, the Pakistan immigrant living in Connecticut who tried to set off a car bomb in New York's Times Square in May. Shahzad, who pleaded guilty, suggested U.S. drone strikes in Pakistan and elsewhere helped motivate him. Targeted killing leads to the loss of U.S. domestic and international legitimacy Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003.

If a presidentially approved policy to kill a regime leader were publicly disclosed, it might fracture any international support the president had garnered for the military conflict. For most of the international community, such a public approval of a morally questionable action would not be acceptable. Even if these nations privately supported the president's actions, it would be unlikely that they would be able to show their support of such an action publicly. Any perceived loss of legitimacy and any damage to the president's reputation could also have further long-term political implications, both domestically and internationally. Targeted killing incites retaliation Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003.

A state that engages in plots to kill leaders also faces some short-term consequences that would

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be harmful to the interests of its leaders and to the interests of the state itself. For one, killing an enemy leader will inevitably arouse hostile feelings among the successors or followers of the regime leader against the perpetrators. Acknowledgement [End Page 82] or disclosure of a state's involvement to the world would likely incite revenge against the individuals who authorized the targeting, creating a dangerous situation for any president. In a political system that is open to the public and where presidents frequently travel the globe, leaders are particularly vulnerable to such retaliatory assassination attempts. Targeted killing breeds international or regional instability Lotrionte, Catherine. Senior Fellow in the Institute of International Law at Georgetown University. When to Target Leaders. http://muse.jhu.edu.proxy.mul.missouri .edu/journals/washington_quarterly/v026/26.3lotrionte.html. Published 2003. Losing a leader may diminish a state's safety and security and may cause regional instability and unpredictability. To minimize this risk, any plan to kill a regime leader would have to exist within a broader strategy that contained options such as working in a cooperative fashion with any successors, legitimate followers of the former regime leader, and neighboring states in the region. Here the United Nations could play a useful role, helping to provide humanitarian aid and establishing legitimate domestic institutions that would accompany any regime change, with or without the loss of the former leader's life, although the level of international and UN support may well depend on the hidden identity of those responsible for killing the former leader. Particularly if the UN Security Council did not authorize the use of force in the first place, UN member states would be less likely to condone any intentional killing of a regime leader and may limit the support in building stability in the area. Policing and government are much more effective than targeted killing and other military campaigns Billitteri, Thomas. Researcher and Writer for the CQ Researcher. Drone Warfare. The Congressional Researcher Online. http://library.cqpress.com.proxy.mul.missouri.edu/ cqresearcher/document.php?id=cqresrre2010080600&type=hitlist&num=0. Published August 6, 2010. A 2008 RAND Corp. study analyzed terrorist groups that existed worldwide between 1968 and 2006 and concluded that military force was rarely the primary reason such groups ended. Rather, most ended because of operations carried out by local police or intelligence agencies or because they negotiated a settlement with their governments, the study said. It added, these findings suggest that the U.S. approach to countering [Al Qaeda] has focused far too much on the use of military force. Instead, policing and intelligence should be the backbone of U.S. efforts.