Evaluating U.S. Targeted Killings: Out of Control?

The occasional blindness of legislators and governments leaders even in the most developed democracies to basic principles of decency, fairness and constitutional principle is not something that is restricted to the United Kingdom by any means.

It is also painfully evident in the United States. To see why this is so stinging, consider the six months following revelations in June 2013 about the PRISM operations by the U.S. National Security Agency (NSA).

Some in the U.S. Congress showed concern that Edward Snowden had in fact revealed a possible abuse of citizens’ rights and that this may need serious investigation.

As the global debate over these issues became more intense, President Obama directly addressed the interests of Americans and foreigners alike when he stipulated regarding (foreign) intelligence collection in a speech on January 17, 2014:

Given the unique power of the state, it is not enough for leaders to say, ‘Trust us, we won’t abuse the data we collect.’ For history has too many examples when that trust has been breached. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power; it depends on the law to constrain those in power.

– U.S. President Barack Obama

As laudable as at least the Obama Administration’s recent review of the ethics of signals-intelligence collection has been, there is a more troubling policy still in place — the practice of the assassination of U.S. and foreign citizens who are suspected of terrorist crimes or, in some cases, convicted of such crimes.

“Targeted killing”

This is called targeted killing. Such acts were once prohibited under U.S. law, but now seem to be lawful — even in the absence of a law to make them so. The difference is the emergence of the war on terror, or rather the terrorist war on the United States.

In a speech at Northwestern University on March 12, 2012, U.S. Attorney General Eric Holder gave the Obama Administration’s most powerful defense of its policy of targeted killings, including in cases where the victim was a U.S. citizen.

Holder gave a long exposition on whether normal courts or military commissions should be used for the trial of suspected terrorists. His next topic was targeted killings: “there are instances where our government has the clear authority — and, I would argue, the responsibility — to defend the United States through the appropriate and lawful use of lethal force” against suspected terrorists.

He said that “United States citizenship alone does not make such individuals immune from being targeted.”

The U.S. Attorney General set out three criteria: the individual must pose an imminent threat of violent attack against the United States; second, capture must be determined to be infeasible; and third, the operation must be conducted in a manner consistent with applicable law of war principles.

Lack of oversight

These principles seem entirely reasonable. However, what is very troubling about Holder’s analysis is his assertion that the necessary “robust oversight” by the U.S. Congress of the Administration’s actions in killing Americans without bringing them to trial can be achieved simply by “informing” Congress.

This is the same Congress whose leaders thought that PRISM was okay.

There was also little elaboration by Holder of the second criterion (capture is infeasible) — except to refer to a “window of time available to prevent an attack.”

At that point, his argument starts to look very weak. A person can be judged by the Administration to be capable of imminent attack on the United States even if he or she is in a remote area of a distant country with poor physical communications links to the rest of the world.

The criteria are simply too broad and vague. Any policy of “capture or kill,” or the U.K. policy of “shoot to kill,” has to be supported by very refined procedures of implementation and review.

The Menezes case shows that the U.K. forces and the political masters were totally incapable of handling that responsibility.

Clearer definitions needed

The U.S. Congress and the courts need to spell out in more detail what the regime for killing of suspected terrorists without trial has to be. They have to spell out what a criterion of “imminent threat” means, and what the criterion of “feasible capture” is, and what might be considered acceptable collateral damage.

Many in Muslim countries argue that the judgment about what constitutes accepted collateral damage in the use of drones to attack suspects or convicted terrorists in foreign countries, especially poor Muslim countries, is very different from what it would be if the same action was taken in the United States.

The United States ought to listen more to its best allies — even, and especially if, they are critical of us. German Chancellor Angela Merkel is a perfect example for that.

A good friend is a critical friend

Critical she may well be, but out of concern for the direction and policy practices of the United States. Her key point is always about being constructively critical.

Merkel admonished the United States over its intelligence collection policies in a speech to the Bundestag on January 29 this year.

A program in which the end justifies all means, in which everything that is technically possible is then acted out, violates trust and spreads mistrust. In the end, it produces not more but less security.

– German Chancellor Angela Merkel

That is a policy argument which in my view has equal resonance for the issue of targeted killings. Jose A. Rodriguez, the former chief of the CIA’s Counterterrorism Center and former head of the National Clandestine Service makes the case:

…the default option now seems to be to kill them remotely. When we do so, we not only inspire many new terrorists, but just as importantly we lose the opportunity to find out what potential detainees know about the intentions of others planning terrorist attacks.

Ethics

We have to make room for the ethical view. Is assassination of terrorist suspects right or wrong?

Not being very circumspect or clear-eyed about all the potential legalities and ramifications of targeted killings is exactly the sort of thinking that killed Jean de Menezes.

A policy of “kill or capture” or “shoot to kill” might be defended in principle, but it verges on the barbaric in practice because of human error and institutional weakness.

But even in principle, the right to life and liberty is a universal value that non-Americans and Americans alike should share. The right to trial is not only a protection for the individual, but an essential element for ensuring the continuity of a stable and just society.