Category Archives: Assassinations (targeted killings)

Macedonia faked ‘militant’ raid

Macedonia faked ‘militant’ raid

BBC, April 30, 2004, http://news.bbc.co.uk/2/hi/europe/3674533.stm

Macedonian officials have admitted that seven alleged Pakistani militants killed in March 2002 were in fact illegal immigrants shot in cold blood to “impress” the international community.

They said four officers in the security services had been charged with their murder, while former Interior Minister Ljube Boskovski may also face charges.

At the time, the interior ministry said they had been killed after trying to ambush police in the capital, Skopje.

But a police spokeswoman said they had in fact been shot in a “staged murder”.

The Macedonians were apparently trying to show the outside world that they were serious about participating in the US-led war on terror, officials say.

“It was a monstrous fabrication to get the attention of the international community,” Interior Ministry spokeswoman Mirjana Kontevska told a news conference.

Questions asked

When the incident was reported more than two years ago, it was claimed that a new front had opened up in the war on terror.

The Macedonian interior ministry said the seven men of Pakistani origin were killed after opening fire on a police patrol with machine guns.

Mr Boskovski said the dead men had been planning attacks on vital installations and embassies.

But questions soon began to be asked about the authorities’ version of events.

Now the public prosecutor’s office has brought charges against officers involved in the case and has asked parliament to waive Mr Boskovski’s immunity from prosecution.

The former interior minister denies any wrongdoing.

Gunned down

Police spokeswoman Mirjana Konteska told the Associated Press news agency that the victims were illegal immigrants who had been lured into Macedonia by promises that they would be taken to western Europe.

She said they were transported to the Rastanski Lozja area, about 5km north of Skopje, where they were surrounded and gunned down by police.

“They lost their lives in a staged murder,” she said.

Ms Konteska told AP the investigation was continuing and more suspects could be charged.

If convicted, they face between 10 years and life in prison.

 

John O. Brennan, Assistant to the President for Homeland Security, justifies drone attacks

The White House  Office of the Press Secretary
June 29, 2011

http://www.whitehouse.gov/the-press-office/2011/06/29/remarks-john-o-brennan-assistant-president-homeland-security-and-counter

Remarks of John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, on Ensuring al-Qa’ida’s Demise –

As Prepared for Delivery
Paul H. Nitze School of Advanced International Studies, Washington, D.C.

Good afternoon.  Thank you, Dean Einhorn, for your very warm welcome and for your decades of service—in government, global institutions and here at SAIS.  And it’s a special pleasure to be introduced by John McLaughlin, a friend and colleague of many years and one of our nation’s great intelligence professionals.

It’s a pleasure to be here at the Paul H. Nitze School of Advanced International Studies, an institution that has instilled in generations of public servants the pragmatic approach to problem-solving that is essential for the effective conduct of foreign policy.  I especially want to thank the Merrill Center for Strategic Studies for its emphasis on national security and for joining with the Office of the Director of National Intelligence to introduce students to our Intelligence Community and inspiring the next generation of intelligence professionals.     

It’s wonderful to see so many friends and colleagues who I’ve had the privilege to work with over many years.  You have devoted your lives to protecting our nation from many threats, including the one that brings me here today, and one that has claimed the lives of some of our friends and colleagues—that is the continued terrorist threat from al-Qa’ida.  

Today, we are releasing President Obama’s National Strategy for Counterterrorism, which formalizes the approach that we’ve been pursuing and adapting for the past two and half years to prevent terrorist attacks and to ensure al-Qa’ida’s demise.  I’m pleased that we are joined today by dedicated professionals from across the federal government who helped to shape our strategy and who work tirelessly every day to keep our country safe.  Thank you for being here.

An unclassified summary of our strategy is being posted today to the White House website, WhiteHouse.gov.   In the time I have with you, I’d like to put our strategy in context, outline its key goals and principals, and describe how we’re putting these principles into practice to protect the American people.    

I want to begin with the larger strategic environment that shapes our counterterrorism efforts.  This starts with the recognition that this counterterrorism strategy is only one part of President Obama’s larger National Security Strategy.  This is very important.  Our counterterrorism policies do not define our entire foreign policy; rather, they are a vital part of—and are designed to reinforce—our broader national security interests.

Since taking office, President Obama has worked to restore a positive vision of American leadership in the world—leadership defined, not by the threats and dangers that we will oppose, but by the security, opportunity and dignity that America advances in partnership with people around the world.  This has enhanced our national security in many areas against many threats.  

At the same time, many of the President’s broader foreign policy and national security initiatives also help to achieve our more focused counterterrorism goals.  They do so by addressing the political, economic and social conditions that can sometimes fuel violent extremism and push certain individuals into the arms of al-Qa’ida.

For instance, when our diplomats promote the peaceful resolution of political disputes and grievances, when our trade and economic policies generate growth that lifts people out of poverty, when our development experts support good governance that addresses people’s basic needs, when we stand up for universal human rights—all of this can also help undermine violent extremists and terrorists like al-Qa’ida.  Peaceful political, economic, and social progress undermines the claim that the only way to achieve change is through violence.  It can be a powerful antidote to the disillusionment and sense of powerlessness that can make some individuals more susceptible to violent ideologies.

Our strategy recognizes that our counterterrorism efforts clearly benefit from—and at times depend on—broader foreign policy efforts, even as our CT strategy focuses more narrowly on preventing terrorist attacks against our interests, at home and abroad.

This, obviously, is also the first counterterrorism strategy to reflect the extraordinary political changes that are sweeping the Middle East and North Africa.  It’s true that these changes may bring new challenges and uncertainty in the short-term, as we are seeing in Yemen.  It also is true that terrorist organizations, and nations that support them, will seek to capitalize on the instability that change can sometimes bring.  That is why we are working closely with allies and partners to make sure that these malevolent actors do not succeed in hijacking this moment of hope for their own violent ends.  

But as President Obama has said, these dramatic changes also mark an historic moment of opportunity.  So too for our counterterrorism efforts.  For decades, terrorist organizations like al-Qa’ida have preached that the only way to affect change is through violence.  Now, that claim has been thoroughly repudiated, and it has been repudiated by ordinary citizens, in Tunisia and Egypt and beyond, who are changing and challenging their governments through peaceful protest, even as they are sometimes met with horrific brutality, as in Libya and Syria.  Moreover, these citizens have rejected the medieval ideology of al-Qa’ida that divides people by faith and gender, opting instead to work together—Muslims and Christians, men and women, secular and religious.

It is the most profound change in the modern history of the Arab world, and al-Qa’ida and its ilk have been left on the sidelines, watching history pass them by.  Meanwhile, President Obama has placed the United States on the right side of history, pledging our support for the political and economic reforms and universal human rights that people in the region are demanding.  This, too, has profound implications for our counterterrorism efforts.

Against this backdrop, our strategy is very precise about the threat we face and the goals we seek.  Paul Nitze once observed that “one of the most dangerous forms of human error is forgetting what one is trying to achieve.”  President Obama is adamant that we never forget who we’re fighting or what we’re trying to achieve.

Let me start by saying that our strategy is not designed to combat directly every single terrorist organization in every corner of the world, many of which have neither the intent nor the capability to ever attack the United States or our citizens.

Our strategy of course recognizes that there are numerous nations and groups that support terrorism in order to oppose U.S. interests.  Iran and Syria remain leading state sponsors of terrorism.  Hezbollah and HAMAS are terrorist organizations that threaten Israel and our interests in the Middle East.  We will therefore continue to use the full range of our foreign policy tools to prevent these regimes and terrorist organizations from endangering our national security.

For example, President Obama has made it clear that the United States is determined to prevent Iran from acquiring nuclear weapons.  And we will continue working closely with allies and partners, including sharing and acting upon intelligence, to prevent the flow of weapons and funds to Hezbollah and HAMAS and to prevent attacks against our allies, citizens or interests.

But the principal focus of this counterterrorism strategy—and the focus of our CT efforts since President Obama took office—is the network that poses the most direct and significant threat to the United States, and that is al-Qa’ida, its affiliates and its adherents.  We use these terms deliberately.

It is al-Qa’ida, the core group founded by Usama bin Laden, that has murdered our citizens, from the bombings of our embassies in Kenya and Tanzania to the attack on the U.S.S. Cole to the attacks of September 11th, which also killed citizens of more than 90 other countries.

It is al-Qa’ida’s affiliates—groups that are part of its network or share its goals—that have also attempted to attack our homeland.  It was al-Qa’ida in the Arabian Peninsula (AQAP), based in Yemen, that attempted to bring down that airliner over Detroit and which put explosives on cargo planes bound for the United States.  It was the Pakistani Taliban that sent Faisal Shahzad on his failed attempt to blow up an SUV in Times Square.

And it is al-Qa’ida’s adherents—individuals, sometimes with little or no direct physical contact with al-Qa’ida, who have succumbed to its hateful ideology and who have engaged in, or facilitated, terrorist activities here in the United States.  These misguided individuals are spurred on by the likes of al-Qaida’s Adam Gadahn and Anwar al-Awlaki in Yemen, who speak English and preach violence in slick videos over the Internet.  And we have seen the tragic results, with the murder of a military recruiter in Arkansas two years ago and the attack on our servicemen and women at Fort Hood.

This is the first counterterrorism strategy that focuses on the ability of al-Qa’ida and its network to inspire people in the United States to attack us from within.  Indeed, this is the first counterterrorism strategy that designates the homeland as a primary area of emphasis in our counterterrorism efforts.       

Our strategy is also shaped by a deeper understanding of al-Qa’ida’s goals, strategy, and tactics. I’m not talking about al-Qa’ida’s grandiose vision of global domination through a violent Islamic caliphate.  That vision is absurd, and we are not going to organize our counterterrorism policies against a feckless delusion that is never going to happen.  We are not going to elevate these thugs and their murderous aspirations into something larger than they are.

Rather, President Obama is determined that our foreign and national security policies not play into al-Qa’ida’s strategy or its warped ideology.  Al-Qa’ida seeks to terrorize us into retreating from the world stage.  But President Obama has made it a priority to renew American leadership in the world, strengthening our alliances and deepening partnerships.  Al-Qa’ida seeks to portray America as an enemy of the world’s Muslims.  But President Obama has made it clear that the United States is not, and never will be, at war with Islam.   

Al-Qa’ida seeks to bleed us financially by drawing us into long, costly wars that also inflame anti-American sentiment.  Under President Obama, we are working to end the wars in Iraq and Afghanistan responsibly, even as we keep unrelenting pressure on al-Qa’ida.  Going forward, we will be mindful that if our nation is threatened, our best offense won’t always be deploying large armies abroad but delivering targeted, surgical pressure to the groups that threaten us.

Al-Qa’ida seeks to portray itself as a religious movement defending the rights of Muslims, but the United States will continue to expose al-Qa’ida as nothing more than murderers.  They purport to be Islamic, but they are neither religious leaders nor scholars; indeed, there is nothing Islamic or holy about slaughtering innocent men, women, and children.  They claim to protect Muslims, but the vast majority of al-Qa’ida’s victims are, in fact, innocent Muslim men, women, and children.  It is no wonder that the overwhelmingly majority of the world’s Muslims have rejected al-Qa’ida and why its ranks of supporters continue to decline.

Just as our strategy is precise about who our enemy is, it is clear about our posture and our goal.  This is a war—a broad, sustained, integrated and relentless campaign that harnesses every element of American power.  And we seek nothing less than the utter destruction of this evil that calls itself al-Qa’ida.

To achieve this goal, we need to dismantle the core of al-Qa’ida—its leadership in the tribal regions of Pakistan—and prevent its ability to reestablish a safe haven in the Pakistan–Afghanistan region.  In other words, we aim to render the heart of al-Qa’ida incapable of launching attacks against our homeland, our citizens, or our allies, as well as preventing the group from inspiring its affiliates and adherents to do so.

At the same time, ultimately defeating al-Qa’ida also means addressing the serious threat posed by its affiliates and adherents operating outside South Asia.  This does not require a “global” war, but it does require a focus on specific regions, including what we might call the periphery—places like Yemen, Somalia, Iraq, and the Maghreb.  This is another important distinction that characterizes this strategy.  As the al-Qa’ida core has weakened under our unyielding pressure, it has looked increasingly to these other groups and individuals to take up its cause, including its goal of striking the United States.

To destroy al-Qa’ida, we are pursuing specific and focused counterterrorism objectives.  
For example:

    We are protecting our homeland by constantly reducing our vulnerabilities and adapting and updating our defenses.
     
    We are taking the fight to wherever the cancer of al-Qa’ida manifests itself, degrading its capabilities and disrupting its operations.
     
    We are degrading the ability of al-Qa’ida’s senior leadership to inspire, communicate with, and direct the operations of its adherents around the world.
     
    We are denying al-Qa’ida any safe haven—the physical sanctuary that it needs to train, plot and launch attacks against us.
     
    We are aggressively confronting al-Qa’ida’s ideology, which attempts to exploit local—and often legitimate—grievances in an attempt to justify violence.
     
    We are depriving al-Qa’ida of its enabling means, including the illicit financing, logistical support, and online communications that sustain its network.
     
    And we are working to prevent al-Qa’ida from acquiring or developing weapons of mass destruction, which is why President Obama is leading the global effort to secure the world’s vulnerable materials in four years.

In many respects, these specific counterterrorism goals are not new.  In fact, they track closely with the goals of the previous administration.  Yet this illustrates another important characteristic of our strategy.  It neither represents a wholesale overhaul—nor a wholesale retention—of previous policies.

President Obama’s approach to counterterrorism is pragmatic, not ideological.  It’s based on what works.  It builds upon policies and practices that have been instituted and refined over the past decade, in partnership with Congress—a partnership we will continue.  And it reflects an evolution in our understanding of the threat, in the capabilities of our government, the capacity of our partners, and the tools and technologies at our disposal.        

What is new—and what I believe distinguishes this strategy—is the principles that are guiding our efforts to destroy al-Qa’ida.

First, we are using every lawful tool and authority available.  No single agency or department has sole responsibility for this fight because no single department or agency possesses all the capabilities needed for this fight.  This is—and must be—a whole-of-government effort, and it’s why the Obama Administration has strengthened the tools we need.

We’ve strengthened intelligence, expanding human intelligence and linguistic skills, and we’re constantly working to improve our capabilities and learn from our experiences.  For example, following the attack at Fort Hood and the failed attack over Detroit, we’ve improved the analytic process, created new groups to track threat information, and enhanced cooperation among our intelligence agencies, including better information sharing so that all threats are acted upon quickly.  

We’ve strengthened our military capabilities. We increased the size of our Special Forces, sped up the deployment of unique assets so that al-Qa’ida enjoys no safe haven, and ensured that our military and intelligence professionals are working more closely than ever before.

We’ve strengthened homeland security with a multi-layered defense, bolstering security at our borders, ports and airports; improving partnerships with state and local governments and allies and partners, including sharing more information; increasing the capacity of our first responders; and preparing for bioterrorism.  In taking these steps, we are finally fulfilling key recommendations of the 9/11 Commission.

Learning the lessons of recent plots and attempted attacks, we’ve increased aviation security by strengthening watchlist procedures and sharing information in real-time; enhancing screening of cargo; and—for the first time—ensuring 100 percent screening of all passengers traveling in, to, and from the United States, which was another recommendation of the 9/11 Commission.  And we are constantly assessing and improving our defenses, as we did in replacing the old color-coded threat system with a more targeted approach that provides detailed information about specific, credible threats and suggested protective measures.

In addition, we are using the full range of law enforcement tools as part of our effort to build an effective and durable legal framework for the war against al-Qa’ida.  This includes our single most effective tool for prosecuting, convicting, and sentencing suspected terrorists—and a proven tool for gathering intelligence and preventing attacks—our Article III courts.  It includes reformed military commissions, which at times offer unique advantages.  And this framework includes the recently renewed PATRIOT Act.  In short, we must have a legal framework that provides our extraordinary intelligence, counterterrorism, and law enforcement professionals with all the lawful tools they need to do their job and keep our country safe.  We must not tie their hands.

For all these tools to work properly, departments and agencies across the federal government must work cooperatively.  Today, our personnel are working more closely together than ever before, as we saw in the operation that killed Usama bin Laden.  That success was not due to any one single person or single piece of information.  It was the result of many people in many organizations working together over many years.  And that is what we will continue to do.

Even as we use every tool in our government, we are guided by a second principle—the need for partnership with institutions and countries around the world, as we recognize that no one nation alone can bring about al-Qa’ida’s demise.  Over the past decade, we have made enormous progress in building and strengthening an international architecture to confront the threat from al-Qa’ida.  This includes greater cooperation with multilateral institutions such as the United Nations, our NATO allies, and regional organizations such as the Association of Southeast Asian Nations and the African Union.

Over the past two and a half years, we have also increased our efforts to build the capacity of partners so they can take the fight to al-Qa’ida in their own countries.  That is why a key element of the President’s strategy in Afghanistan is growing Afghan security forces.  It’s why we’ll soon begin a transition so that Afghans can take responsibility for their own security.  And it’s why we must continue our cooperation with Pakistan.

In recent weeks we’ve been reminded that our relationship with Pakistan is not without tension or frustration.  We are now working with our Pakistani partners to overcome differences and continue our efforts against our common enemies.  It is essential that we do so.  As frustrating as this relationship can sometimes be, Pakistan has been critical to many of our most significant successes against al-Qa’ida.  Tens of thousands of Pakistanis—military and civilian—have given their lives in the fight against militancy.  And despite recent tensions, I am confident that Pakistan will remain one of our most important counterterrorism partners.

These kinds of security partnerships are absolutely vital.  The critical intelligence that allowed us to discover the explosives that AQAP was shipping to the United States in those cargo planes was provided by our Saudi Arabian partners.   Al-Qa’ida in Iraq has suffered major losses at the hands of Iraqi security forces, trained by the United States.  Despite the ongoing instability, our counterterrorism cooperation with Yemen continues, and I would argue that the recent territorial gains made by militants linked to AQAP only makes our CT partnership with Yemen more important.

Around the world, we will deepen our security cooperation with partners wherever al-Qa’ida attempts to take root, be it Somalia, the Sahel or Southeast Asia.  For while al-Qa’ida seeks to depict this fight as one between the world’s Muslims and the United States, it is actually the opposite—the international community, including Muslim-majority nations and Muslim communities, united against al-Qa’ida.

This leads to the third principle of our strategy—rather than pursuing a one-size fits-all approach, we recognize that different threats in different places demand different tools.  So even as we use all the resources at our disposal against al-Qa’ida, we will apply the right tools in the right way and in the right place, with laser focus.

In some places, such as the tribal regions between Afghanistan and Pakistan, we will deliver precise and overwhelming force against al-Qa’ida.  Whenever possible, our efforts around the world will be in close coordination with our partners.  And, when necessary, as the President has said repeatedly, if we have information about the whereabouts of al-Qa’ida, we will do what is required to protect the United States—as we did with bin Laden.

In some places, as I’ve described, our efforts will focus on training foreign security services.  In others, as with our Saudi Arabian and Gulf state partners, our focus will include shutting down al-Qa’ida’s financial pipelines.  With longtime allies and partners, as in Europe, we’ll thwart attacks through close intelligence cooperation.  Here in the United States—where the rule of law is paramount—it’s our federal, state, and local law enforcement and homeland security professionals who rightly take the lead.  Around the world, including here at home, we will continue to show that the United States offers a vision of progress and justice, while al-Qa’ida offers nothing but death and destruction.

Related to our counterterrorism strategy, I would also note that keeping our nation secure also depends on strong partnerships between government and communities here at home, including Muslim and Arab Americans, some of whom join us today.  These Americans have worked to protect their communities from al-Qa’ida’s violent ideology and they have helped to prevent terrorist attacks in our country.  Later this summer, the Obama Administration will unveil its approach for partnering with communities to prevent violent extremism in the United States.  And a key tenet of this approach is that when it comes to protecting our country, Muslim Americans are not part of the problem, they’re part of the solution.    

This relates to our fourth principle—building a culture of resilience here at home.  We are doing everything in our power to prevent another terrorist attack on our soil.  At the same time, a responsible, effective counterterrorism strategy recognizes that no nation, no matter how powerful—including a free and open society of 300 million Americans—can prevent every single threat from every single individual who wishes to do us harm.  It’s not enough to simply be prepared for attacks, we have to be resilient and recover quickly should an attack occur.

So, as a resilient nation, we are constantly improving our ability to withstand any attack—especially our critical infrastructure, including cyber—thereby denying al-Qa’ida the economic damage and disruption it seeks.  As a resilient government, we’re strengthening the partnerships that help states and localities recover quickly.  And as a resilient people, we must remember that every one of us can help deprive al-Qa’ida of the success it seeks.  Al-Qa’ida wants to terrorize us, so we must not give in to fear.  They want to change us, so we must stay true to who we are.

Which brings me to our final principle, in fact, the one that guides all the others—in all our actions, we will uphold the core values that define us as Americans.  I have spent more than thirty years working on behalf of our nation’s security.  I understand the truly breathtaking capabilities of our intelligence and counterterrorism communities.  But I also know that the most powerful weapons of all—which we must never forsake—are the values and ideals that America represents to the world.

When we fail to abide by our values, we play right into the hands of al-Qa’ida, which falsely tries to portray us as a people of hypocrisy and decadence.  Conversely, when we uphold these values it sends a message to the people around the world that it is America—not al-Qa’ida—that represents opportunity, dignity, and justice.  In other words, living our values helps keep us safe.

So, as Americans, we stand for human rights.  That is why, in his first days in office, President Obama made it clear that the United States of America does not torture, and it’s why he banned the use of enhanced interrogation techniques, which did not work.  As Americans, we will uphold the rule of law at home, including the privacy, civil rights, and civil liberties of all Americans.  And it’s because of our commitment to the rule of law and to our national security that we will never waver in our conviction that the United States will be more secure the day that the prison at Guantanamo Bay is ultimately closed.

Living our values—and communicating to the world what America represents—also directly undermines al-Qa’ida’s twisted ideology.  When we remember that diversity of faith and background is not a weakness in America but a strength, and when we show that Muslim Americans are part of our American family, we expose al-Qa’ida’s lie that cultures must clash.  When we remember that Islam is part of America, we show that America could never possibly be at war with Islam.

These are our principles, and this is the strategy that has enabled us to put al-Qa’ida under more pressure than at any time since 9/11.  With allies and partners, we have thwarted attacks around the world.  We have disrupted plots here at home, including the plan of Najibullah Zazi, trained by al-Qa’ida to bomb the New York subway.

We have affected al-Qa’ida’s ability to attract new recruits.  We’ve made it harder for them to hide and transfer money, and pushed al-Qa’ida’s finances to its weakest point in years.  Along with our partners, in Pakistan and Yemen, we’ve shown al-Qa’ida that it will enjoy no safe haven, and we have made it harder than ever for them to move, to communicate, to train, and to plot.

Al-Qa’ida’s leadership ranks have been decimated, with more key leaders eliminated in rapid succession than at any time since 9/11.  For example, al-Qa’ida’s third-ranking leader, Sheik Saeed al-Masri—killed.  Ilyas Kashmiri, one of al-Qa’ida’s most dangerous commanders—reportedly killed.  Operatives of AQAP in Yemen, including Ammar al-Wa’ili, Abu Ali al-Harithi, and Ali Saleh Farhan—all killed.  Baitullah Mahsud, the leader of the Pakistani Taliban—killed.  Harun Fazul, the leader of al-Qa’ida in East Africa and the mastermind of the bombings of our embassies in Africa—killed by Somali security forces.

All told, over the past two and half years, virtually every major al-Qa’ida affiliate has lost its key leader or operational commander, and more than half of al-Qa’ida’s top leadership has been eliminated.  Yes, al-Qa’ida is adaptive and resilient and has sought to replace these leaders, but it has been forced to do so with less experienced individuals.  That’s another reason why we and our partners have stepped up our efforts.  Because if we hit al-Qa’ida hard enough and often enough, there will come a time when they simply can no longer replenish their ranks with the skilled leaders they need to sustain their operations.  And that is the direction in which we’re headed today.

Now, with the death of Usama bin Laden, we have struck our biggest blow against al-Qa’ida yet.  We have taken out al-Qa’ida’s founder, an operational commander who continued to direct his followers to attack the United States and, perhaps most significantly, al-Qa’ida’s symbolic figure who has inspired so many others to violence.  In his place, the organization is left with Ayman al-Zawahiri, an aging doctor who lacks bin Laden’s charisma and perhaps the loyalty and respect of many in al-Qa’ida.  Indeed, the fact that it took so many weeks for al-Qa’ida to settle on Zawahiri as its new leader suggests possible divisions and disarray at the highest levels.

Taken together, the progress I’ve described allows us—for the first time—to envision the demise of al-Qa’ida’s core leadership in the coming years.  It will take time, but make no mistake, al-Qa’ida is in its decline.  This is by no means meant to suggest that the serious threat from al-Qa’ida has passed; not at all.  Zawahiri may attempt to demonstrate his leadership, and al-Qa’ida may try to show its relevance, through new attacks.  Lone individuals may seek to avenge bin Laden’s death.  More innocent people may tragically lose their lives.

Nor would the destruction of its leadership mean the destruction of the al-Qa’ida network.  AQAP remains the most operationally active affiliate in the network and poses a direct threat to the United States.  From the territory it controls in Somalia, Al-Shabaab continues to call for strikes against the United States.  As a result, we cannot and we will not let down our guard.  We will continue to pummel al-Qa’ida and its ilk, and we will remain vigilant at home.

Still, as we approach the 10th anniversary of the 9/11 attacks, as Americans seek to understand where we stand a decade later, we need look no further than that compound where bin Laden spent his final days.  There he was, holed-up for years, behind high prison-like walls, isolated from the world.  But even he understood the sorry state of his organization and its ideology.

Information seized from that compound reveals bin Laden’s concerns about al-Qa’ida’s long-term viability.  He called for more large-scale attacks against America, but encountered resistance from his followers and he went for years without seeing any spectacular attacks.  He saw his senior leaders being taken down, one by one, and worried about the ability to replace them effectively.

Perhaps most importantly, bin Laden clearly sensed that al-Qa’ida is losing the larger battle for hearts and minds.  He knew that al-Qa’ida’s murder of so many innocent civilians, most of them Muslims, had deeply and perhaps permanently tarnished al-Qa’ida’s image in the world.  He knew that he had failed to portray America as being at war with Islam.  In fact, he worried that our recent focus on al-Qa’ida as our enemy had prevented more Muslims from rallying to his cause, so much so that he even considered changing al-Qa’ida’s name.  We are left with that final image seen around the world—an old terrorist, alone, hunched over in a blanket, flipping through old videos of a man and a movement that history is leaving behind.

This fight is not over.  But guided by the strategy we’re releasing today, we will never waver in our efforts to protect the American people.  We will continue to be clear and precise about our enemy.  We will continue to use every tool at our disposal, and apply them wisely.  We will continue to forge strong partnerships around the world and build a culture of resilience here at home.  And as Americans, we will continue to uphold the ideals and core values that inspire the world, define us as people and help keep us safe.  

President Obama said it best last week—we have put al-Qa’ida on a path to defeat, and we will not relent until the job is done.  Thank you all very much.

“Targeted Killings:” U.S. Policy toward use of covert operations involving assassination

Understanding American Foreign Policy
“Targeted Killings:”  U.S. Policy toward use of covert operations involving assassination

Political Science 128 and 311
Mary Baldwin College, Staunton VA 24401
by Prof. Gordon L. Bowen, Ph.D.
this page last updated June 7 , 2012
http://www.mbc.edu/faculty/gbowen/AssassinationPolicy.htm

This timeline reviews changes in U.S. Policy on the issue of assassination

1949-1954: As part of U.S. anti-communist policies in Guatemala, lists of human targets for political assassination were prepared as early as 1949.  Offers of assistance and preparations for actual assassinations in Guatemala, 1952-54, involved agents of several foreign governments (i.e., Dominican Republic, El Salvador, Honduras, Nicaragua), Guatemalan anti-communists inside and outside Guatemala, and U.S. intelligence personnel.  The potential killing of elected Guatemalan President Jacobo Arbenz Guzman repeatedly was discussed, and in one 1953 meeting the CIA suggested that it be done in a manner so that it could be “laid to the commies.”  Under two covert operations, PBFORTUNE under Pres. Truman and PBSUCCESS under Pres. Eisenhower, according to a CIA document declassified in 1997: “CIA officers responsible for planning and implementing covert action against the Arbenz Government engaged in extensive discussions over a two and a half year period about the possibility of assassinating government officials… Proposals for assassination pervaded both PBFORTUNE and PBSUCCESS, rather than being confined to an early stage of these programs.  Even before the official approval of PBFORTUNE, CIA officers compiled elimination lists and discussed the concept of assassination with Guatemalan opposition leaders.  Until the day Arbenz resigned in June 1954 the option of assassination was still being considered… Beyond planning, some actual preparations were made.  Some assassins were selected, training began, and tentative “hit lists” were drawn up…. Cold War realities and perceptions conditioned American attitudes toward what political weapons were legitimate to use in the struggle against communism.”  See: Gerald K. Haines, “CIA and Guatemala Assassination Proposals, 1952-1954,” (Washington, D.C.: Central Intelligence Agency CIA History Staff Analysis, June 1995): 8-9; SECRET, declassified 1997.  

Nov. 20, 1975: Senate Select Committee to study Governmental Operations with Respect to Intelligence Agencies (Church Committee) reported numerous CIA assassination attempts: Fidel Castro (Cuba) , Patrice Lumumba (Congo), Rafael Trujillo (Dominican Republic), and 2 others occurred during the  Presidencies of Dwight D. Eisenhower, John F. Kennedy, Lyndon B. Johnson, and Richard M. Nixon.  Combined with Chilean revelations involving deaths of political and military leaders there (i.e., President Salvador Allende; Armed Forces Chief of Staff Rene Schneider) consensus in Congress to bar future such actions emerged. A significant parallel now appears to have existed between the planned attempt to transfer blame for assassination onto U.S. adversaries in some plots contemplated against Arbenz in the 1950s and the intended political impact of the actual plot in Chile against Gen. Schneider in 1970, though CIA sources insist the actual killing of Gen. Schneider was carried out not by the group with whom CIA was working toward this end, but by another group with similar intentions.

February 18, 1976: Pres. Gerald Ford issued Executive Order 11905, a secret finding barring U.S. personnel from assassination plots.  It stated:  “5(g) Prohibition on Assassination. No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”  

January 26, 1978, Pres. Jimmy Carter renewed the ban with an executive order of his own 12306, which located its ban on assassination at sections 2-305 (barring direct participation) and 2-309 (barring indirect participation).  It read: “2-305. Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination. . . . 2-307. Restrictions on Indirect Participation in Prohibited Activities. No agency of the Intelligence Community shall request or otherwise encourage, directly or indirectly, any person, organization, or government agency to undertake activities forbidden by this order or by applicable law.”  (For full context, go here, then to page 2 of the document).

A “Special Activities” branch in CIA, however, continued to exist throughout the 1970s and 1980s.

December 4, 1981: Executive Order 12333, signed by Pres. Ronald Reagan continued the ban.  At section 2.11 it stated: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”

January 23, 1995: Pres. Bill Clinton signed Executive Order 12947 that approved creation of list of specific terrorists.

1998: Clinton accepted legal advice that Article 2, section 2 of the U.S. Constitution always had permitted lethal violence against individuals when done in the self-defense of the nation. A series of secret Memorandum of Notification invoking this principle were issued providing for the use of lethal force toward Osama bin Laden and several others in his organization.  Yet, in all actual missions authorized in this regard, the capture of bin Laden, not his killing, also was required to remain a central element.  Thus, CIA officials have stated (Coll 2004: 17): “the objective was to render this guy to law enforcement,” and not to kill him.  Nonetheless, as National Security Advisor Sandy Berger stated in a 2002 Congressional hearing (Coll), in the November 1998 Tomahawk missiles attack on a bin Laden camp in Afghanistan “the cruise missiles were not trying to capture him.  They were not law enforcement techniques.”

September 14, 2001: By enacting Senate Joint Resolution 23, Congress granted President George W. Bush the power to use “all necessary and appropriate force” against “persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”

Fall 2001: Washington Post reported, and the New York Times reported confirmation from the White House, that Pres. Bush signed a classified Presidential finding permitting planned targeting of Osama Bin Laden, and others.  The precise date of the signing of the Finding has been reported as Oct. 20, Oct. 28, and Sept. 17.  If such a Finding was separately authorized, it would be consistent with policies defined contemporaneously.  The 9/11 Commission (477), reported that on Oct. 25, 2001, National Security Presidential Directive No. 9 was signed by President Bush.  Its title was “Defeating the Terrorist Threat to the United States.”  It broadened the war beyond Al Qaeda and the states that had harbored or assisted its planning and preparations for the 9.11.01 attack.  This Presidential document also remains classified.  But a summary of its content is online at the Federation of American Scientists’ website.  This summary and other news accounts clearly infer that U.S. personnel henceforth were authorized in the use of deadly force against leadership targets.  Thus, it is a fair conclusion that in the Fall of 2001, the U.S. set aside limitations on assassination and authorized operations that could reasonably be expected to lead to the killing of bin Laden and other Al Qaeda leaders. 

War on Terrorism.  Such targeted operations have been undertaken on numerous occasions, some quite visible, others less so.  One in plain view was on January 13, 2006, when a U.S. air raid on Bajur, Pakistan, targeted Ayman al Zawahiri, Al Qaeda’s second in command.  Zawahiri himself apparently was not present when the village was attacked, but according to Pakistan’s President Pervez Musharraf (Washington Post 2006): “Five foreigners were killed in the U.S. attack in Bajur. One of them was a close relative of Ayman Zawahiri and the other man was wanted by the U.S. and had a $5 million reward on his head.”

Other matters beyond targeting leaders (or assassination) also have been reported to have been addressed in the 2001 Presidential Directive and related Findings.  Dana Priest, writing in the Washington Post in 2005, was insistent that “lethal measures against terrorists” were among the things authorized in the classified Finding issued on Sept. 17, 2001.   

•    The finding was reported by Priest to have cited the Hughes-Ryan amendment of 1974 and the Intelligence Oversight Act of 1980. 

•    The 1991 Intelligence Oversight Act required the signing of a written Presidential authorization (called a “finding”) before use of any funds budgeted to the CIA in covert operations.

•    According to Priest, among the other things authorized in the Fall 2001 Presidential Finding included:

•    The establishment in foreign countries of Counterterrorist Intelligence Centers, or CTICs under the supervision of the Counterterrorist Center at CIA Headquarters.  CTICs coordinate activities of U.S. and foreign intelligence agencies.

•    the approval of expenditure of funds to persuade foreign intelligence agencies to cooperate in a new way with the CIA and other U.S. agencies. 

•    The redeployment of U.S. intelligence personnel formerly assigned to counter-narcotics work, to counter-proliferation, and to regional divisions in Europe, Africa, Asia, and the Middle East to the various new tasks required in the Global War on Terrorism.

Under this authority, numerous operations were conducted during the Bush Administration, operations that in large part remain classified.  One that soon became public, a November 3, 2002 attack in Yemen that targeted Abu Ali al-Harithi, a senior Al Qaeda official there, also killed a U.S. citizen from Lackawanna, New York, Kamal Derwish (aka Ahmed Hijazi), who was traveling with al-Harithi at the time his vehicle came under attack.  Sources in the Obama Administration’s Justice Department later clarified that Derwish had not been the target of that attack, but died nonetheless as a collatoral victim of it (Finn).  Al-Harithi had been targeted as a result of investigations into the October 2000 attack on the USS Cole in Aden (Yemen) harbor, an al Qaeda attack that killed 17 U.S. sailors on the USS Cole.  This attack was confirmed by an interview with (then) U.S. Secretary for Homeland Security Tom Ridge that was broadcast as part of the PBS documentary Chasing the Sleeper Cell, an October 3, 2003, broadcast concerning the Lackawanna Six.  Ridge’s interview is linked here, though the particular individuals’ names were redacted.

In 2009-2010, the Obama Administration embraced the use of drone air strikes against terrorists, especially in Pakistan.  (These attacks are regularly tallied by the Long War Journal).  Obama’s reliance on drones led to some criticisms of the wide scope of the targeting for killing.  Administration legal sources defended the tactics on the basis of the inherent right to self defense which the U.S. has as a result of the 9/11 attacks.  (For a thorough discussion of the Administration’s policies, and its critics’ views, see Adam Entous’ May 2010 story for Reuters, “How the White House learned to Love the Drone.”)

Bin Laden case: Obama did not rely solely on drones.  On May 1-2, 2011, U.S. special operations forces’ SEAL Team 6 entered Pakistan using stealth helicopters and, at Abbotabad, Pakistan, entered his residence and killed Osama bin Laden, leader of Al Qaeda, in an acknowledged political assassination authorized by Pres. Barack Obama.  This action was consistent with (Bush era) National Security Presidential Directive No. 9, and other legal authority arising from Congressional action (i.e., Senate Joint Resolution 23, an act of Congress). It also was authorized under U.N. Security Council Resolution 1368 (Sept. 12, 2001) through its link to the U.N. Charter (Article 51 of the Charter of the United Nations) and to customary international law.  Nonetheless, U.S. relations with Pakistan were sharply strained by this attack, about which the Pakistan Government and security bureaucracies were kept uninformed before and during the raid.

Al Awlaqi case: 

In November 2010, A.C.L.U. lawyers representing the father of radical U.S.-born Muslim cleric Anwar al-Awlaqi sued the U.S. Government in U.S. District Court for Washington, D.C., arguing that Judge John D. Bates issue an injunction barring the government from carrying out orders to “capture or kill” al-Awlaqi as part of the war on terrorism.  A.C.L.U. attorney Jameel Jaffer argued in court that “if the 4th and 5th Amendments mean anything at all, it is that there are limits on the government’s use of lethal force against one of its own citizens, and that courts have to play a role in determining those limits.” Al-Awlaqi was then believed to be in Yemen, and in July 2010, was formally designated as a global terrorist for his operational role in the Christmas Day airliner bombing attempt over Detroit.  An organizer of al Qaeda in the Arabian Peninsula (AQAP), Al-Awlaqi claimed responsibility for a series of cargo bombs placed on international airliners during November 2010, and on November 8, 2010 posted a video on jihadist websites telling Muslims they were free to kill American “devils” at will and without further religious blessing, or fatwa. Government attorneys argued that this question is inherently political in nature, and thus is not a proper matter for courts to decide (Hsu: A5).   The court declined to rule on the matter, citing the procedural ground that al-Awlaqi’s father did not have standing to file the suit.

On Sept. 30, 2011, a CIA drone aircraft operating over Yemen fired two missiles that killed several members of Al Qaeda in the Arabian Peninsula, including their chief ideologist Anwar al-Awlaqi, a U.S. citizen born in New Mexico.  This was the first time U.S. operations in the conflict that began on Sept. 11, 2001 had openly targeted a U.S. citizen and killed him.  Samir Khan, another American citizen, also died; while he was editor of AQAP’s internet magazine Inspire and a member of Al Qaeda, his death was collatoral; he himself was not targeted, but died nonetheless.  Al-Awlaqi had been targeted after calling for Muslims to kill any American they could in a Fall 2010 internet broadcast.  Department of Justice officials and “senior lawyers across the Administration” had met and formalized in writing the legal authority for the President to approve the operation. 

Legal standards in use for targeting Americans, and non-Al Qaeda groups:  In an apparent defense of the killing of al-Awlaki, on February 22, 2012, Jeh Johnson, General Counsel for the U.S. Department of Defense, in a speech to Yale Law School, stated that “Belligerents who also happen to be U.S. citizens do not enjoy immunity where non-citizen belligerents are valid military objectives.”  In this speech, Johnson also outlined the legal basis for targeting non-Al Qaeda groups for lethal force.  He stated that the U.S. Government applies a two part test: is the group “associated” with Al Qaeda, and has the group specifically started fighting the U.S. and its allies. “Thus, an ‘associated force’ is not any terrorist group in the world that merely embraces the Al Qaeda ideology,” he said. “More is required before we draw the legal conclusion that the group fits within the statutory authorization for the use of military force passed by the Congress in 2001.”  These positions received further iteration in a March 5, 2012 speech by U.S. Attorney General Eric Holder at the Northwestern University Law School.  There Holder spoke expansively of Presidential authority to “protect the nation from any imminent threat of violent attack” separate from authority granted by Congress (i.e., in Sept. 2001).  Carefully emphasizing that “Our legal authority is not limited to the battlefields in Afghanistan,” Holder emphasized that “several” attacks directed at the United States in recent years have been organized in states other than Afghanistan.   Holder stated that not only are U.S. counter-attacks lawful, they often are mis-labelled: “Some have called such operations ‘assassinations.’   They are not, and the use of that loaded term is misplaced.   Assassinations are unlawful killings.   Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes” (see Holder 2012).

In late May 2012, the New York Times presented an extensive background investigation into the authorization process involved in such targeted killings.  It placed President Obama himself at the center of decision making about specific operations of this kind, including the selection of the specific individuals to be targeted, and the monitoring of the success of these operations was said to be closely followed by the President, so closely that former Director of National Intelligence Dennis Blair described Obama’s attention to it in the following way: “it reminded me of body counts in Vietnam [war].”

Bibliography on U.S. targeted killings / assassination policy:

Elizabeth Bazan, “Assassination Ban and E.O. 12333: A brief summary,” CRS Report for Congress (January 2, 2002).

Jo Becker and Michael Shane, “Secret ‘Kill List’ Proves a test of Obama’s principles and will,” New York Times (May 29, 2012).

Stephen Coll, “Legal Disputes Over Hunt Paralyzed Clinton’s Aids,” Washington Post (Feb. 22, 2004): 17.

Adam Entous, “Special Report: How the White House Learned to Love the Drone,” Reuters (May 18, 2010): http://www.reuters.com/article/idUSTRE64H5SL20100518 ; permanent link: HowTheWhiteHouseLearnedtolovethedrone2010.doc

Federation of American Scientists, “NSPD-9: Combating Terrorism,” (October 25, 2001).

Peter Finn and Sara Horowitz, “Holder: U.S. can lawfully target American citizens,” Washington Post (March 5, 2012): http://www.washingtonpost.com/world/national-security/holder-us-can-lawfully-target-american-citizens/2012/03/05/gIQANknFtR_story.html

Peter Finn, “Secret U.S. Memo Sanctioned Killing of Al-Aulaqi,” Washington Post (Sept. 30, 2011): http://www.washingtonpost.com/world/national-security/aulaqi-killing-reignites-debate-on-limits-of-executive-power/2011/09/30/gIQAx1bUAL_story.html

Holder 2012: “Attorney General Eric Holder Speaks at Northwestern University School of Law, Chicago, Monday March 5, 2012” U.S. Department of Justice website: http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html

Spencer S. Hsu, “Suit against placing Aulaqi on kill list challenged by U.S.,” Washington Post (Nov. 9, 2010): A5.

Scott McClellan, “Press Briefing: Military Options in al Qaeda Plan,” (Washington D.C.: The White House, April 1, 2004).

National Commission on Terrorist Attacks Upon the United States, The 9.11 Report (NY: St. Martins, 2004).  In the online version of the Commission’s report, the language cited above appeared at pp. 333-334.

Dana Priest, “Foreign Network at Front of CIA’s Terror Fight,” Washington Post (Nov. 18, 2005): 1, 12.  (This story appeared on this same date in the Virginia edition under the headline “CIA Builds Foreign Front Against Terrorism” but was identical to the article linked here).

Bill Roggio and Alexander Mayer, “Charting the data for U.S. airstrikes in Pakistan, 2004-2012,” Long War Journal (online).

Barry Rubin, “When it’s necessary and desirable to assassinate terrorists,” Rubin Report (Feb. 25, 2010).

Donald Rumsfeld, “Testimony to 9/11 Commission, March 24, 2004 ,” Federation of American Scientists’ Website

Charlie Savage, “Pentagon Says U.S. Citizens With Terrorism Ties Can Be Targeted in Strikes,” New York Times online (February 22, 2012).

Washington Post 2006: Associated Press, “Musharraf Discusses Figures Hit by U.S. Missiles,” Washington Post (February 12, 2006): A28.

Of related interest:

Laura Blumenfeld “In Israel, a Divisive Struggle Over Targeted Killing,” Washington Post, (August 27, 2006): 1, 12-13.

Scott Wilson, “Israel’s Court Upholds Military’s Right to Assassinate,” Washington Post, (December 14, 2006).

Alex S. Wilner, “Targeted Killings in Afghanistan: Measuring Coercion and Deterrence in Counterterrorism and Counterinsurgency,” Studies in Conflict and Terrorism, Vol. 33, No. 4, (April 2010).

David Ignatius, “A hint of deterrence in U.S. drone-war strategy,” Washington Post, (October 5, 2011).

Ret. US General urges to kill Iranian leaders

Washington’s Black Ops against Iran
Extensive range of covert operations envisaged by US Congress

By Dr. Ismail Salami
Global Research, October 30, 2011

The US secret agenda for tightening its vice-like grip on the Islamic Republic of Iran has taken on an apparently new form after the anti-Iran alleged assassination plot against the Saudi ambassador to the United States, Adel al-Jubeir, raised many eyebrows among experts and analysts around the world.

With a strong penchant for pushing for tougher action on Iran, the Obama administration has already imposed a series of sanctions against the Islamic Republic. However, a Republican-controlled congressional committee has recently heard testimony demanding an extensive range of covert operations against the country.

The operations, which range from cyber attacks to political assassinations, are speculated to be conducted under the feeble excuse that Iran was the alleged architect of an assassination plot against the Saudi envoy to the United States. By political assassination, the US congressmen unconsciously mean the liquidation of the Iranian nuclear scientists, an act they actually started long ago.

Retired Army Gen. John Keane told a hearing of two key subcommittees of the House Committee on Homeland Security on Wednesday, “We’ve got to put our hand around their throat now. Why don’t we kill them? We kill other people who kill others.”

Also, Rep. Jackie Speier (D-Calif.) poured some pearls of wisdom over others and called for “sober, reasoned discussion.”

“Iran’s leaders must be held accountable for their action,” she said, “but we cannot take any reckless actions which may lead to opening another front in the ‘War on Terror,’ which the American people do not want and cannot afford.”

Naturally, the US government, in essence, cannot afford to wage another war at least in view of the economic woes it has wrought upon the American citizens, regardless of other influencing factors.

The stone that started rolling fell into the hands of New York Congressman Peter King who made an extremely bizarre comment. He suggested that the US should kick out Iranian officials at the UN in New York and in Washington and accused them of being spies, ignorant of the fact that the UN is considered an independent international body and that the US has no authority to ‘kick out’ diplomats accredited there en masse.

Overwhelmed with a sense of false eagerness, he renewed the anti-Iran alleged assassination ploy and said excitedly, “So you have the assassination of a foreign ambassador, you have the willingness to kill hundreds of Americans — this is an act of war,” King said, “I don’t think we can just do business as usual or even carry out sanctions as usual.”

The volley of vitriolic words against Iran which issued from Mr. King reeks of blind enmity long egged on by other hawks in Washington.

In point of fact, the anti-Iran moves practically started in 2007 when US Congress agreed to George W. Bush, the then US president, to fund a major increase in covert operations against Iran. According to the intelligence officials who spoke to the Blotter on ABCNews.com, the CIA was then given a presidential approval to commence its covert ‘black’ operations inside Iran. To that effect, over four hundred million dollars were allocated in a Presidential Finding signed by George W. Bush. The ultimate goal of the finding was to cripple Iran’s religious government and the operations involved throwing support behind minority Ahwazi Arab and Baluchis and other opposition groups as well as amassing intelligence about Iran’s nuclear sites.

Speaking on the condition of anonymity because of the sensitive nature of the subject, the intelligence officials confirmed that Bush had signed a “nonlethal presidential finding”, giving the CIA carte blanche to engage in any sabotaging activities including a coordinated campaign of propaganda, disinformation and manipulation of Iran’s currency and international financial transactions in order to destabilize and eventually achieve regime change in Iran.

“I can’t confirm or deny whether such a program exists or whether the president signed it, but it would be consistent with an overall American approach trying to find ways to put pressure on the regime,” said Bruce Riedel, a retired CIA senior official, an expert on Iran and the Middle East (ABCNEWS.com May 22, 2007).

In June 2007, The New Yorker magazine also ran a similar story by Seymour Hersh, confirming that the finding had been signed by Bush and intended to destabilize the Islamic government.

“The Finding was focused on undermining Iran’s nuclear ambitions and trying to undermine the government through regime change,” the article cited a person familiar with its contents as saying, and involved “working with opposition groups and passing money.”

From an intelligence point of view, the fact that the US government is resorting to covert black operations against Iran rules out the possibility of a military strike against the country.

According to reports, US ambassadors in Islamabad have repeatedly asked for opening a consulate in the province of Baluchistan, a suspicious demand from the US. In 2011, the call was renewed by US ambassador Cameron Munter to Islamabad. Persistence in this demand is to be taken seriously. Baluchistan is strategically important as it is a harbor for the anti-Iran terrorist group, Jundullah, in the first place and a separatist Pakistani province in the second place.

In fact, Washington greatly favors the establishment of a ‘Greater Baluchistan’ which would integrate the Baluch areas of Pakistan with those of Iran. Military expert Lieutenant Colonel Ralph Peters suggests that Pakistan should be broken up, leading to the formation of a separate country: ‘Greater Baluchistan’ or ‘Free Baluchistan’ (June 2006, The Armed Forces Journal). As a result, this would incorporate the Baluch provinces of Pakistan and Iran into a single political entity which can be tailored to suit the interests of Washington.

So it seems that the US harbors two main ulterior motives if this demand is answered. First, it can fulfill its dream of establishing the Greater Baluchistan, consolidate firm presence in this separatist part of Pakistan and secondly, it will be in a position to avail itself of this influence to carry out its sabotaging activities within Iran.

Earlier in 2007, the Blotter on ABCNews.com revealed the role of the US government in backing the terrorist Iranian group , which is responsible for a number of gruesome assassinations of the Iranian civilians on the Iran-Pakistan-Afghanistan border. The terrorist group spares no efforts in sowing the seed of terror in the southern Iranian province of Sistan-Baluchistan and their lust for murder and cruelty knows no remission. The victims the group has so far claimed include many women and children who have become the direct target of their killing. In July 2010, the group mounted a pair of suicide attacks on a major Shi’ite mosque in the city of Zahedan, the capital of Iran’s Sistan-Balochistan Province, killing dozens of worshippers and wounding over 100 people.

Although US officials deny any ‘direct funding’ of the terrorist group, they acknowledge that they are in contact with the leader of the group on a regular basis. A similar terroristic attack was launched by the same group on a mosque in Zahedan in May 2009, which led to the martyrdom of many worshippers.

Sadly enough, Pakistan’s Inter-Service Intelligence (ISI) implicitly supports the group and reportedly shelters some of its high-profile members in coordination with the CIA.

Isn’t it paradoxical that Jundullah, a terrorist group and an offshoot of al-Qaeda, is directly funded by the US government which keeps bandying about its so-called ‘war on terror’ in the world?

This is enough to cause the US to hang its head low in shame and humility.

Dr. Ismail Salami is an Iranian author and political analyst. A prolific writer, he has written numerous books and articles on the Middle East. His articles have been translated into a number of languages.

http://homeland.house.gov/hearing/joint-subcommittee-hearingiranian-terror-operations-american-soil
Joint Subcommittee Hearing: Iranian Terror Operations on American Soil
Subcommittee on Counterterrorism and Intelligence | 311 Cannon House Office Building Washington, D.C. 20515 | 10/26/2011 – 10:00am
On Wednesday, October 26, 2011 the Committee on Homeland Security’s Subcommittee on Counterterrorism and Intelligence and the Subcommittee on Oversight, Investigations, and Management will hold a joint hearing entitled “Iranian Terror Operations on American Soil.” The Subcommittees will meet at 10:00 a.m. in 311 Cannon House Office Building.
Opening Statements
Rep. Michael McCaul (R-TX), Subcommittee Chairman
Rep. Patrick Meehan (R-PA), Subcommittee Chairman
Rep. Peter King (R-NY), Chairman

Additional Videos:
Subcommittee Chairman McCaul questions witnesses at hearing on Iranian terror operations in U.S.
Subcommittee Chairman Meehan questions witnesses at hearing on Iranian terror operations in U.S.

Witnesses
General Jack Keane
United States Army (Retired)
[full text of testimony]

Mr. Reuel Marc Gerecht
Senior Fellow
Foundation for Defense of Democracies

Dr. Matthew Levitt
Director
Stein Program on Counterterrorism & Intelligence
The Washington Institute for Near East Policy
[full text of testimony]
[truth in testimony]

Dr. Lawrence Korb
Senior Fellow
Center For American Progress Action Fund
[full text of testimony]
[truth in testimony]
Colonel Timothy J. Geraghty
United States Marine Corps (Retired)
[full text of testimony]
[truth in testimony]

Rep. King: Kick Iranians out of UN
Oct 26, 2011
By The Associated Press
WASHINGTON — Rep. Peter King said Wednesday that the United States should kick out Iranian officials at the United Nations in New York and in Washington because many of them are spies.

Speaking at a hearing, King (R-Seaford) said such a move would send a clear signal after the recent alleged Iranian plot to assassinate the Saudi ambassador in Washington.

The U.S. and Iran have no diplomatic relations and thus there are no Iranian diplomats in the U.S. except those attached to the UN mission in New York. Iran maintains a full-time UN ambassador and a staff there. Although those diplomats are allowed to live in the U.S. for that purpose, the UN is an independent international body and the U.S. cannot simply kick out diplomats accredited there en masse.

Meanwhile, the Obama administration is setting up an Internet-based embassy to reach out to Iranians hoping to broaden their understanding of the United States, while at the same time studying new sanctions to raise the pressure on Iran’s government over its disputed nuclear program and alleged ties to terrorism.

Secretary of State Hillary Rodham Clintonsaid in interviews Wednesday with Persian-language media that the U.S. wanted to affirm its friendship to the Iranian people even at a time of rising tensions withTehran. As part of that, she said a “virtual embassy in Tehran” will be online by the end of the year, helping Iranians wishing to travel or study in the United States.
“We’re trying to reach out to the Iranian people,” Clinton said. “We’ve tried to reach out to the government, just not very successfully.”

Clinton stressed that the U.S. was committed to its approach of engagement and sanctions toward the Iranian government. But she said the outreach was directed to Iranians who’ve suffered as a result of their government’s “reckless” conduct” regarding uranium enrichment, fomenting unrest in neighboring countries and its role in the alleged assassination plot.

Assassinations of Iranian scientists

Assassinations of Iranian scientists

Attempts to foil the Iranian nuclear programme from faulty parts to computer worms have been blamed on intelligence agencies

Julian Borger

guardian.co.uk, Wednesday 2 November 2011 15.23 GMT

For many years US, British, German and Israeli intelligence agencies are said to have helped to supply Iran with faulty parts designed to self-destruct and cause damage to surrounding equipment.

Over the past two years three Iranian scientists have been killed and one wounded in Tehran in what appears to be a focused campaign.

In January 2010 a particle physicist, Masoud Ali Mohammadi, was killed by a remote-controlled bomb strapped to a motorcycle as he was leaving his Tehran home on his way to work.

In November last year Majid Shahriar, of the nuclear engineering faculty at the Shahid Beheshti University in Tehran, was killed by a bomb stuck to the side of his car by an assassin on a motorbike. On the same day Fereidoun Abbasi-Davani, a nuclear physicist suspected in the west of involvement in nuclear weapons development, was injured in a similar attack. Three months later he was made head of the Iranian nuclear effort.

In July a university physicist, Darioush Rezaie, was shot dead by a gunman on a motorbike in an eastern Tehran street.

In 2010 a computer worm called Stuxnet infected operating systems at the Natanz enrichment plant, making large numbers of centrifuges crash and causing the temporary suspension of enrichment work in November that year. Enrichment restarted a few days later and Iran has made up the backlog in production, although its centrifuges have appeared to be less efficient since the Stuxnet attack.

German officials endorse assassinations (in German)

http://www.nrhz.de/flyer/beitrag.php?id=15554

Inland

ARD-Tagesschau, Oeter und Westerwelle klären über gezieltes Töten auf

Furchtbare Rechtsausleger 

Von Volker Bräutigam

 

“(…) Die Internationale Sicherheitsunterstützungstruppe (ISAF) ist

autorisiert, alle erforderlichen Maßnahmen einschließlich der Anwendung

militärischer Gewalt zu ergreifen, um das Mandat gemäß Resolution 1833

(2008) durchzusetzen.” (Mehrheitsbeschluss des Deutschen Bundestages zur

Beteiligung am Afghanistankrieg, 7. Oktober 2008). Das gezielte Ermorden

sogenannter, vermeintlicher oder tatsächlicher Taliban in Afghanistan unter

Mitwirkung der Bundeswehr könnte das deutsche Publikum beunruhigen. Was tut

also tagesschau.de?

 

Die Redaktion befragt einen Wissenschaftler, Professor Stefan Oeter,

Direktor des Instituts für Internationale Angelegenheiten der Universität

Hamburg, der prompt versichert, das Targeted Killing, wie es im NATO-

Amerikanisch heißt, sei durch den Mehrheitsbeschluss des Deutschen

Bundestages zur Beteiligung am Afghanistankrieg vom 7. Oktober 2008 gedeckt:

“Die Internationale Sicherheitsunterstützungstruppe (ISAF) ist autorisiert,

alle erforderlichen Maßnahmen einschließlich der Anwendung militärischer

Gewalt zu ergreifen, um das Mandat gemäß Resolution 1833 (2008)

durchzusetzen. Das Mandat bezieht sich auf die Unterstützung der

afghanischen Regierung bei der Aufrechterhaltung der Sicherheit. (…) Alle

militärisch notwendigen Mittel, die für die Erfüllung des

Sicherheitsratsmandats erforderlich sind, können von den Bundeswehrtruppen

eingesetzt werden.” [1] 

 

Fragesteller Stefan Aretz wendet ein, der Krieg in Afghanistan sei kein

Konflikt zwischen Staaten, die Taliban seien doch nur Aufständische. Oeter:

“In einem solchen nicht-internationalen Konflikt gibt es keinen

Kombattantenstatus – die Taliban sind also nicht per se militärische Ziele.

Rechtlich sind sie im Prinzip Angehörige der Zivilbevölkerung. Es gibt aber

eine Sonderregelung. Soweit sie mit der Waffe in der Hand militärisch

operieren, werden sie doch zu militärischen Zielen, bei denen gezielte

Gewalt zur Tötung eingesetzt werden darf.” [1]

 

“Sonderregelung”? In welchem Codex? Aretz fragt nicht nach – der Herr

Professor wird sich schon was dabei gedacht haben – Oeter jedoch erläutert

immerhin: “In der polizeilichen Situation brauchen sie (gemeint:

ISAF-Soldaten. V.B.) die konkrete Gefahr, um Gewalt einzusetzen. Im

bewaffneten Konflikt reicht die abstrakte Gefahr, die die Aufständischen

darstellen, die mit der Waffe in der Hand militärische Operationen

durchführen. (…) Es reicht aus, dass sie (Oeter meint jetzt die

Aufständischen. V.B.) in einem Gebiet militärisch operieren, in dem sie sich

nicht aufhalten sollten.” [1]

 

  Auch examinierter Jurist – Dr. Guido Westerwelle

  NRhZ-Archiv

 

Wo steht das geschrieben? Aretz lässt die professorale Auskunft einfach so

stehen. Vergleichbar weit legt Außenminister Dr. Guido Westerwelle, auch

examinierter Jurist, die Genfer Konventionen aus, als er am 5. August vor

der Bundespressekonferenz in Berlin verkündet, dass Taliban-Führer planmäßig

umgebracht werden dürften: “Ob es uns gefällt oder nicht, so ist die Lage”.

Es gehe da “nicht um Legitimität, sondern um Legalität”. Westerwelle

bekräftigt, dass gegnerische Kämpfer im sog. nicht-inter-nationalen

bewaffneten Konflikt gemäß dem Völkerrecht “gezielt bekämpft werden können

und auch dürfen”. [2] Keiner der Journalisten fasst nach. In dieser

Versammlung von Durchlauferhitzern reklamiert niemand, dass das II.

Zusatzprotokoll zur Genfer Konvention vom 8. Juni 1977 (es betrifft die von

Westerwelle erwähnten “nicht-internationalen” Konflikte) ausschließlich den

Schutz der wichtigsten Menschenrechte regelt – und mit keinem Wort benennt,

wer “gezielt bekämpft werden darf.” [3] Westerwelle hat allerdings

Rückendeckung. In der Woche vor seinem abscheulichen Auftritt hatte bereits

das “Verteidigungs”-Ministerium erklärt, Gegner gezielt zu töten sei

“…nach dem Regelwerk der NATO für den Einsatz der ISAF vorgesehen.” [4]

Das Regelwerk der NATO, ein quasi universales Recht? 

 

Gemäß dem II. Zusatzprotokoll (Art. 4) zu den Genfer Abkommen (vulgo:

Kriegsrecht) stehen “alle Personen, die nicht unmittelbar oder nicht mehr an

Feindseligkeiten teilnehmen” unter Schutz; ihr Leben, ihre Gesundheit und

ihre Würde dürfen nicht verletzt werden. Das gilt auch für Aufständische,

die – beispielsweise – gerade an einer Hochzeitsfeier teilnehmen. Man darf

sie und das Haus, in dem sie mit Kind und Kegel schlafen, nicht einfach in

die Luft jagen, wie es verbrecherische ISAF-NATO-US-Praxis ist. [5] Dass

militärische Geheimkommandos ihre Todeslisten in Afghanistan abarbeiten,

indem sie Streumunition mit Raketenwerfern verschießen, ist mit nichts zu

rechtfertigen, auch nicht unter übelster Beugung des Kriegsrechts.

 

Und was ist mit den kämpfenden Aufständischen? Westerwelle unterstellt (wie

Oeter) einfach, dass sie den Schutz der Genfer Abkommen komplett verlieren,

wenn und solange sie “unmittelbar an Feindseligkeiten teilnehmen”

(Protokolltext). Doch sind auch kämpfende Aufständische kein Freiwild. Das

ergibt sich aus Art. 1 und vor allem aus der Präambel des Protokolls, in der

es wörtlich heißt: “… eingedenk dessen, daß die menschliche Person in den

vom geltenden Recht nicht erfassten Fällen unter dem Schutz der Grundsätze

der Menschlichkeit und der Forderungen des öffentlichen Gewissens verbleibt

…”

 

Übrigens steht im Art. 6 des Protokolls ein Satz, der das Targeted Killing

unbezweifelbar als Rechtsbruch ausweist: “(2) Gegen eine Person, die für

schuldig befunden wurde, eine Straftat begangen zu haben, darf eine

Verurteilung nur in einem Urteil ausgesprochen und nur auf Grund eines

Urteils eine Strafe vollstreckt werden; dieses Urteil muss von einem Gericht

gefällt werden, das die wesentlichen Garantien der Unabhängigkeit und

Unparteilichkeit aufweist.” Ein Jurist mag einwenden, diese Bestimmung gelte

nicht für die “Taliban” als Triebkräfte des Aufstands in Afghanistan. Sie

seien militärische Ziele und deshalb anders zu behandeln als normale

Straftäter. Das aber liefe darauf hinaus, das Völkerrecht der Beliebigkeit

und dem Zweckmäßigkeitsdenken zu unterstellen: anzuwenden nur, wenn und

inwieweit es dem Kriegsherren in den Kram passt.

 

Westerwelles Behauptung, Aufständische ohne Gerichtsverfahren und Urteil zum

Abschuss freizugeben sei legal und keine Frage der Legitimität, ist nicht

nur unzutreffend. Sie ist schlicht amoralisch und kennzeichnend für

furchtbare Juristen. Massaker an Zivilisten (Oberst Klein, Kundus) tödliche

Schießereien (Bundeswehr-Straßensperren), vor allem aber Verlust an

Mitmenschlichkeit: Das alles kommt dabei heraus, wenn man in solchem Geiste

“unsere Sicherheit am Hindukusch verteidigt”.[6]

 

(Textwiedergabe mit freundlicher Genehmigung der Zeitschrift Ossietzky.

Ergänzung mit Internet-Quellenangaben als Fußnoten: vb).

 

1 http://www.tagesschau.de/inland/afghanistanmandat102.html

2 www.sueddeutsche.de/…/debatte-ueber-krieg-in-afghanistan-westerwelle-

verteidigt-gezielte-toetungen-1.984153

3 http://www.admin.ch/ch/d/sr/0_518_521/index.html

4 Christian Dienst, Sprecher des Verteidigungsministeriums,

Bundespressekonferenz, Quelle: Reuters (28. Juli 2010)

5

http://www.guardian.co.uk/world/2010/jun/10/afghanistan-kandahar-wedding-par

ty-explosion

6 Peter Struck, SPD, vormals Bundesverteidigungsminister, bei Vorstellung

der Verteidigungspolitischen Richtlinien, Mai 2003.

http://www.medico.de/material/rundschreiben/2010/02/vernetzte-sicherheit/ 

 

On the offensive: assassination policy under international law

On the offensive: assassination policy under international law

Harvard International ReviewFall, 2003 by Kristen Eichensehr

Originally promulgated in the time of kings when wars of aggression were the sovereign’s prerogative, international custom and later treaties prohibiting attacks on the leader arose from kings’ mutual desire to protect themselves. In the post-League of Nations and UN Charter era, aggressive war is illegal under international law, but many dictatorial rulers and non-state commanders have continued to benefit from the prohibition on assassination traditionally afforded to kings.

Black’s Law Dictionary defines assassination as “the act of deliberately killing someone especially a public figure, usually for hire or for political reasons.” If termed “assassination,” then attacks on leaders have been construed as prohibited by Article 23b of the Hague Convention of 1899, which outlaws “treacherous” attacks on adversaries, and by the Protocol Addition to the Geneva Convention of 1949, and Relating to the Protection of Victims of International Armed Conflict (Protocol I), which prohibits attacks that rely on “perfidy.” But in recent years, and especially since the September 11, 2001, terrorist attacks, Israel and the United States have reframed such actions as “targeted killings,” defining the victims as “enemy combatants” who are therefore legitimate targets wherever they are found. This redefinition has relied on and benefited from the work of some in the international law community who have long argued that in some instances, targeted attacks on leaders are not prohibited by international law. This reinterpretation of law is not a radical shift; the radical shift is US and Israeli willingness to engage in attacks openly, whatever may have occurred covertly in the past decades. Strong pragmatic reasons, such as sparing the lives of troops who would be killed in a large scale assault, justify targeting leaders if possible, but such a policy opens the employing country to reciprocal attacks, justified or not, on its own leaders. In some cases, killing militant leaders may do more harm than good by further inflaming an already tense situation and causing retributory attacks. Killing adversary leaders can fall within the bounds of international law and can provide enormous gains, but in employing this strategy, the United States and countries that follow its example must be prepared to accept the exploitation of the new policy by adversaries who will not abide by the standards of proof or evidential certainty adhered to by Western democracies.

Pliant Prohibition

As with many areas of international law, the status of assassinations is relatively ambiguous. The clauses that traditionally have been construed as prohibiting “targeted killings” are far from clear prohibitions. In the Hague Convention (II) with Respect to the Laws and Customs of War on Land (29 July 1899), Article 23b states that it is prohibited “to kill or wound treacherously individuals belonging to the hostile nation or army.” Treachery is not explicitly defined, and it can be argued that using missiles to attack a car in which a target is traveling, while brutal and having a high probability of injuring bystanders, does not fall within the purview of treachery. Similarly, targeted killings can be argued to fall outside the Protocol I Article 37 prohibition on killing, injuring, or capturing “an adversary by resort to perfidy”–described as “acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Article 37 gives examples of perfidy including “the feigning of an intent to negotiate under a flag of truce or surrender” and “the feigning of civilian, non-combatant status.” The manner in which Israel and the United States have engaged in targeted killings does not meet this definition of perfidy because neither state leads targets to believe that they are protected by international law.

In addition to the international law governance of assassinations, US policy–not law–has prohibited their use since 1976 when US President Gerald Ford signed Executive Order 11905, which states, “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.” US Presidents Carter and Reagan renewed the prohibition in Executive Orders 12036 and 12333 respectively. In Executive Order 12333, Reagan even expanded the prohibition slightly: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” The prohibition remains in effect because no subsequent president has revoked it. However, just as Executive Orders are signed as policy by the president, the president may also circumvent or nullify them, which is the course current US President George Bush has chosen.

According to an October 2001 story broken by Washington Post writer Bob Woodward, Bush issued an “intelligence finding”–a presidential directive–that authorizes the US Central Intelligence Agency (CIA) to use broad and previously prohibited means to attack Osama Bin Laden and Al Qaeda. Government lawyers have argued that the Executive Order ban on assassinations does not apply during wartime, thereby leaving the method available for use, but the intelligence finding leaves little doubt that assassinations are sanctioned from the highest level of the US government.

Deadly Employment

Israel has sanctioned targeted killings for decades. Writing in The Middle East Quarterly, Gal Luft argues that the policy was originally adopted because the militant groups attacking Israel operated out of Arab states hostile to Israel, rendering arrest and extradition impossible. Prime Minister Golda Meir ordered hit squads to kill the members of the militant group Black September who gave authorization for the murder of Israeli athletes at the Munich Olympic Games. In 1973, eventual Prime Minister Ehud Barak lead a group of commandos into Lebanon to kill three high-ranking Palestine Liberation Organization officials. Another important assassination occurred in Tunis in 1988 when Israeli commandos killed Khalil al-Wazir, known as Abu Jihad, who was second in command to Yasser Arafat.

Israeli reliance on targeted killings has increased dramatically since the beginning of the intifada in September 2000. The first known targeted killing of the current intifada was that of Hussein Abayat, a Fatah member who was killed when the Israelis fired anti-tank missiles at his car in November 2000. According to a June 2003 report in The Washington Post, there were 249 victims of targeted attacks by Israel–149 targets and 100 bystanders, body guards, and family members–between September 2000 and the publishing of the report. The same report claims that Israel increased its number of targets from 35 in 2001 to 72 in 2002.

Prior to the September 11 attacks and the subsequent “war on terrorism,” the United States, particularly the Department of State, routinely criticized Israeli use of targeted killings and stated its opposition to the policy. These criticisms have been much muted since the United States began employing targeted killing for its own ends. In November 2002, CIA operatives in Djibouti used a remote-controlled Predator drone to fire a missile at the car in which Qa’id Sinan al-Harithi, a suspected member of M Qaeda and planner of the 2000 USS Cole bombing, was traveling in the Yemeni desert. Al-Harithi and the five other passengers were killed. After this much publicized attack, US criticism of Israeli policy became muted, and US officials relied on claims that their condemnation of the policy in Israel’s case did not mean that it was prohibited in all instances, presumably not those involving the United States.

Support for targeted killings by the US public also surged in the months following the attacks. According to a December 2001 poll by Newsweek, 65 percent of those surveyed favored allowing US military and intelligence agencies the discretion to assassinate leaders Al Qaeda and other terrorist groups in the Middle East. Over 57 percent believe that the targeted killings may occur in Africa and Asia, and 54 percent extend the same belief to Europe.

Ranking Targets

Government leaders and some in the international law community offer both pragmatic and legal arguments for employing targeted killings. The pragmatic reasons alone are perhaps compelling enough to justify revisiting the legal interpretation, but the law can be reinterpreted independent of attempts to justify desired policy. Legal scholars rely on the supremacy of the UN Charter’s call for removal of threats to the peace. Article I of the Charter lists the purpose of the United Nation as being “to maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.” Scholars argue that the most effective way to eliminate threats to the peace is to remove those leaders who cause them, by apprehending them if possible, but if not, then by targeted killings.

Scholars have also reconstituted the classification of leaders subject to targeted killings. They assert that the targets can be defined as “enemy combatants,” even if only a de Facto war and not a traditional declared war exists. As “enemy combatants,” the targets are subject to attack wherever they may be found, such as Al-Harithi in Yemen, and their killing is akin to any other battlefield death, not “assassination.” Professor Robert Turner, Associate Director of the Center for National Security Law at the University of Virginia, notes that the UN Security Council in Resolutions 1368 and 1373 reinforced the right of victims of terror attacks to use lethal force in self-defense. Both US and Israeli citizens claim the status of victims and thereby the right to use deadly force in dealing with the perpetrators. Turner therefore argues that the use of lethal force in dealing with terrorists does not violate international law or US Executive Orders.

Calculated Risk

Despite the advantages targeted killings offer and the ability to justify them as legal, there are severe downsides to their employment. By engaging in attacks on leaders, even ones such as Saddam Hussein and high-ranking members of Al Qaeda, states lose the moral high ground they had been able to claim, at least publicly. In the case of the United States, some areas of the world are unsympathetic to US claims to be fighting terror, and to these people, targeted killings by the United States appear indistinguishable from assassinations. As is evidenced by US government rhetoric, it becomes difficult to condemn use of targeted killing by other actors once the United States has employed it. While this may not make terrorists who would have targeted US leaders any more or less likely to do so, it does make world opinion of the United States even less favorable and provides terrorists with the opportunity, to justify their attacks by claiming that the United States uses the same tactic.

Georgetown University Law Center Professor Gary Solis writes, “Having engaged in targeted killing, even once, it would be difficult to cry. foul, were we subjected to the same tactic.” US authorities would argue that US officials are not reasonable targets because they do not commit brutal attacks as do US enemies, but terrorist adversaries and those sympathetic to them make their own evaluations of US actions. Solis also writes, “Merely being “commander-in-chief” is insufficient to transform [the US] president into a combatant and a lawful target,” but many unsympathetic to the United States would disagree. Having opened the Pandora’s box and begun down the slippery slope of targeted killings, the United States cannot hope to control other parties’ employment of the policy, and there is a grave danger that other states, even Western democracies that could be expected to adhere to a more stringent level of proof before attacking adversaries, will employ targeted killings for their own political ends.

A Costly Remedy

Publicized US employment of targeted killings in the war on terror made a return to the previous era of credible moral superiority in rhetoric impossible. The preferable alternative to targeted killing of enemies should always be arrest and trial, but in cases where those alternative measures are not available, targeted killing may be the next best alternative.

However, careful calculation of the risks and benefits of employing the policy must be weighed before it is implemented. The threat of reciprocity and repercussions for society are serious considerations that are often not given enough weight, and the policy should be re-examined continually to evaluate its effectiveness in decreasing the threat to the employing state’s citizens. In some instances, targeted killings are both legal and effective, but for societies founded on principles of human rights, they should never be the first choice.

Kristen Eichensehr “On the offensive: assassination policy under international law“. Harvard International Review. FindArticles.com. 26 Apr, 2010. http://findarticles.com/p/articles/mi_hb137/is_3_25/ai_n29042816/

The Changing Law of Assassinations

The Changing Law of Assassinations

by Liaquat Ali Khan

The war on terror is changing the international law of assassinations. Presently, the law prohibits all forms of extrajudicial executions, including state-sponsored assassinations, and requires that even the worst criminals be granted due process and fair trial. Nonetheless, the recent failure of the United Nations Security Council to condemn the assassination of Sheikh Ahmed Yassin raises the question whether exceptions are emerging under which states may execute, without any judicial process, the rank and file of terrorist organizations.

 

No such exception has been written into international law–not yet. Israel is the most articulate proponent of the view that members of terrorist organizations are lawful targets for execution without trial. Israel’s advocacy of extrajudicial executions is most intriguing, for it has otherwise outlawed capital punishment in its legal system. Close behind Israel is the United States, which hesitates to openly embrace the Israeli view of assassinations. And yet for all practical purposes, it seems to condone such executions. For it was the United States–the lone star on the Security Council–which actively opposed the resolution that denounced the assassination of Sheikh Yassin. (11 members voted for the resolution, 3 abstained.)

 

In vetoing the resolution, the United States was not posing as a morally blind ally of Israel. It was serving its own interests. Since September 11 attacks, the Bush administration has been openly advocating the killing of terrorists–of course without a trial. In Afghanistan and Iraq, US special operations snipers have actually killed several foreign nationals in forced and staged encounters. The most theatrical assassination occurred in 2002 when a CIA-operated pilotless plane, flying over the Yemeni desert, killed six terrorists speeding in a car below. Deputy Defense Secretary Paul Wolfowitz called it a “very successful tactical operation.”

 

n defending their lawless killings, Israel and the United States take a confederate stand. They vow not to let their citizens and soldiers be killed by known terrorists who plan or perpetrate acts of murder and mayhem. Calling it active self-defense or lawful interception, they argue that international law should not preclude executing terrorists determined to harm their citizens and soldiers.

 

Despite their united stand, Israel promotes a much broader exception to the rule than does the United States. Israel would kill not only persons poised to commit terror, but would execute even their spiritual and political leaders. These leaders are lawful targets, Israel argues, because they, by their rhetoric and blessing, foster and favor a culture of violence that spawns suicide bombers and other perpetrators of violence. In contrast, the United States pleads for a far narrower exception under which killing a terrorist leader is legally excusable when the leader has actually masterminded specific acts of murder.

 

From a legal viewpoint, however, even narrow exceptions may hurt the innocent. Any extrajudicial killing, no matter how narrowly conceived, cuts off fundamental human rights enshrined in universal treaties. For example, the defendant is slain without a fair hearing before an impartial tribunal. He is given no opportunity to impeach the evidence or witnesses against him. The killer state is accountable to no defense attorney, no jury, and no court. It simply says to the world: “Take my word. The man just executed was a terrorist!” Was he? Given the botched intelligence about Iraq’s weapons of mass destruction, not even a superpower can assure the world that its decision to kill without a trial is based on irrefutable evidence of criminality.

 

The Israeli version of extrajudicial executions is even more problematic, as it leads to sheer oppression. It shatters all distinctions between terrorists and insurgents fighting for self-determination. International law recognizes the right of peoples under colonial and racist regimes or other forms of alien domination to struggle and seek freedom. According to Israeli, however, no matter how oppressive are the conditions of servitude, occupation, and even genocide (Sabra and Shatila), the Palestinians have no right to armed struggle for independence. Moreover, any organization that uses force as a means of liberation espouses terrorism and, as such, its entire leadership is a lawful target for assassinations.

Furthermore, there is the domino effect. If international law opens the door to lawless executions, national systems will be emboldened to go even further. Fighting crime will mimic the mantra of fighting terrorism. Already, encounter killings, precipitated through shootouts between the police and alleged criminals, are commonplace in many countries, including Nepal, the Philippines, and Sri Lanka. The United States Country Reports on Human Rights Practices, issued in 2003, recounts how Indian security forces faked encounters to justify extrajudicial executions. While some victims were Muslim and Sikh militants, others were Dalits demanding fair wages. In Brazil, street children have been routinely killed as security risks and leaders of indigenous populations have been executed for demanding a better demarcation of their reservation lands to stop illegal encroachments.

Perhaps realizing the inherent perils embodied in the arguments for the Sheikh’s assassination, the eleven members of the Security Council rightfully stood behind an undiluted prohibition against extrajudicial executions.

 

The writer is a professor at Washburn University School of Law in Topeka, Kansas.

 

 

Targeted killing and the law of armed conflict

Targeted killing and the law of armed conflict

 

By Gary Solis

 

There is no consensus definition “targeted killing” in the law of armed conflict or in case law. (1) A reasonable definition is: the intentional killing of a specific civilian who cannot reasonably be apprehended, and who is taking a direct part in hostilities, the targeting done at the direction and authorization of the state in the context of an international or noninternational armed conflict.

 

In the second year of the Redland-Blueland war, an armed conflict between two states, a Redland sniper squeezed the trigger of his rifle, the crosshairs of the scope unmoving on his target: a uniformed Blueland soldier. The weapon fired, and five hundred meters away the enemy combatant fell to the ground, dead.

 

Was this a “targeted killing”?

 

The Redland-Blueland war continued. After months of planning and the training of a team of disaffected Redland nationals, Blueland was ready to implement an operation against the enemy. Days later, two clandestinely inserted Redland nationals, trained in Blueland and wearing Blueland army uniforms, planted an explosive charge under a bridge located inside Redland. Later, as the limousine of the president of Redland passed over the bridge, the charge was detonated and the target killed. The president, elected to office when he was a college professor, had been a thorn in the side of the Blueland government, with his anti-Blueland rhetoric and verbal attacks on Blueland policies. Now, Blueland’s most hated critic was dead, silenced by Blueland agents.

 

Was this a “targeted killing”?

 

During World War II, in April 1943, Admiral Isoroku Yamamoto, commander in chief of the Japanese Combined Fleet was on an inspection tour hundreds of miles behind the front lines. Having broken the Imperial Japanese Navy’s message code, U.S. forces knew his flight itinerary and sent sixteen Army Air Forces P-38 Lightning fighter aircraft to intercept him. Near Bougainville, in the northern Solomons, the American pilots shot down their target, a Betty bomber, killing all on board, including Admiral Yamamoto.

 

Was this a “targeted killing”?

 

First, consider the Redland sniper. On the battlefield the killing of combatants–uniformed members of the army of one of the parties to the conflict–by opposing combatants is lawful. The sniper, a lawful combatant, killed a lawful enemy combatant in the course of armed conflict between two high contracting parties to the Geneva Conventions. To kill the enemy in a lawful manner was the sniper’s mission; it was expected and required of him. A combatant taking aim at a human target and then killing him is not what is meant by the term “targeted killing.” “The [1907] Hague Regulations expressed it more clearly in attributing the ‘rights and duties of war.’ … [A]ll members of the armed forces … can participate directly in hostilities, i.e., attack and be attacked.” (2) 1977 Additional Protocol I, which supplements the 1949 Geneva Conventions, repeats that formulation. (3) The status of “combatant” is crucial, because of the consequences attached to it. It is the mission of every state’s armed forces–its combatants–to close with and destroy the enemy. Soldiers who do so are subject to no penalty for their acts. (4) This was not a targeted killing.

 

The killing of Redland’s president is another matter. He was a civilian and presumably a noncombatant, not subject to combatant targeting. The leaders of some states may be considered combatants, however–World War II’s Adolf Hitler, for example. Saddam Hussein of Iraq, another example, was a combatant and lawful target, since he customarily wore a military uniform and went armed, often in the vanguard of Iraqi military units. He decided the tactical and strategic movements of his nation’s military forces. These factors combined to make him a combatant and a lawful target in time of war.

 

How about the president of the United States?

He is denominated by the Constitution as the “commander in chief” of the nation’s armed forces. He is the person whom the chairman of the Joint Chiefs of Staff advises. The president is the final authority for the strategic disposition of U.S. armed forces–“the decider.” (5) In time of international armed conflict the president of the United States is a lawful target for an opposing state’s combatants.

 

The United Kingdom’s monarch? The monarch is the honorary colonel in chief or captain general of many Commonwealth regiments–seventy-one, in the case of Queen Elizabeth II–and is sometimes in military uniform for ceremonial occasions. But determining if a chief of state is a lawful target is not simply a question of whether he or she wears a uniform. In this instance, the king or queen exercises no command of armed forces and has no say in the tactical or strategic disposition of British forces; those decisions reside in the prime minister and Parliament. The United Kingdom’s monarch, in uniform or not, is probably not a lawful target.

 

What little we know of Redland’s president–a noncombatant with no apparent role in directing Redland’s armed forces–suggests that he was not a lawful target. His killing, even in time of war, even by opposing combatants, was assassination

 

There are many definitions of “assassination,” none universally accepted. The term does not appear in the 1907 Hague Conventions, 1949 Geneva Conventions, United Nations Charter, or the Statutes of the International Criminal Courts for Yugoslavia and Rwanda. Confusingly, the term is used differently in peace and in armed conflict. (6) Assassination in time of armed conflict is “the specific targeting of a particular individual by treacherous or perfidious means.” (7) This wartime definition tracks with that in the law of armed conflict (LOAC): “It is especially forbidden … to kill or wound treacherously individuals belonging to the hostile nation or army.” (8) In U.S. practice, that language is “construed as prohibiting assassination…. It does not, however, preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or elsewhere.” (9) One simplistic but adequate definition of peacetime assassination is the “murder of a targeted individual for political purposes [or] for political reasons.” (10) Former Department of State legal adviser Abraham D. Sofaer has described it similarly: “Any unlawful killing of particular individuals for political purposes.” (11)

 

In the domestic law of most states, assassination is considered murder. Michael Walzer writes, “Political assassins are simply murderers, exactly like the killers of ordinary citizens. The case is not the same with soldiers, who are not judged politically at all and who are called murderers only when they kill noncombatants.” (12) In any event, the armed forces of most states are not customarily involved in assassination, that being left to other government organizations.* The killing of Redland’s president was assassination and murder, hut it was not a targeted killing.

 

Nor was Admiral Yamamoto’s death a targeted killing. Like the Blueland sniper’s victim, Yamamoto was a lawful combatant in an international armed conflict, killed by opposing lawful combatants. “There is nothing treacherous in singling out an individual enemy combatant (usually, a senior officer) as a target for a lethal attack conducted by combatants distinguishing themselves as such … even in an air strike.” (13) The fact that Yamamoto was targeted away from the front lines is immaterial. Combatants may be targeted wherever found, armed or un armed, awake or asleep, on a front line or a mile or a hundred miles behind the lines, “whether in the zone of hostilities, occupied territory, or elsewhere.” (14) Combatants can withdraw from hostilities only by retiring and becoming civilians, by becoming hors de combat, or by laying down their arms. (15) The shooting down of Admiral Yamamoto was not a targeted killing.

 

These exclusionary examples indicate that targeted killing is not the battlefield killing of combatants by opposing combatants. Targeted killing is not the assassination of an individual, military or civilian, combatant or noncombatant, for political purposes. What is an example of targeted killing, then?

 

On 3 November 2002, over the desert near Sanaa, Yemen, a Central Intelligence Agency-controlled Predator drone aircraft tracked an SUV containing six men. One of the six, Qaed Salim Sinan al-Harethi, was known to be a senior al-Qa’ida lieutenant suspected of having played a major role in the 2000 bombing of the destroyer USS Cole. He “was on a list of ‘high-value’ targets whose elimination, by capture or death, had been called for by President Bush.” (16) The United States and Yemen had tracked al-Harethi’s movements for months. Now, away from any inhabited area, the Predator fired a Hellfire missile at the vehicle. The six occupants, including al-Harethi, were killed. (17)

 

That was a targeted killing. In today’s new age of nonstate actors engaging in transnational terrorist violence, targeting parameters must change. Laws of armed conflict agreed upon in another era should be interpreted to recognize the new reality. While some will disagree, the killing of al-Harethi should be considered as being in accord with the law of armed conflict.

 

SELF-DEFENSE

 

The justification for targeted killing rests in the assertion of self-defense. Israel argues that “it is the prime duty of a democratic state to effectively defend its citizens against any danger posed to their lives and well-being by acts or activities of terror.” (18) In the United States, the preamble of the Constitution includes the words, “in order to … provide for the common defense.” A prominent Israeli scholar argues, “It may be contended that the right of self-defence is inherent not in jus naturale, but in the sovereignty of States.” (19) In 2004, the United States initiated an aggressive military-based strategy against suspected terrorists, no longer taking a law enforcement approach to their capture and trial. (20)

 

An argument against a state’s assertion of self-defense as legal justification is that “this type of practice ]targeted killing] is incompatible with international law, which categorically prohibits extra-judicial executions.” (21) Indeed, 1907 Hague Regulation IV notes, “It is especially forbidden … to declare that no quarter will be given.” (22) Human rights organizations say that “suspected terrorists should be detained and put on trial before they can lawfully be punished for their actions…. To kill under these circumstances is simply execution–but carried out without any trial or proof of guilt.” (23) The International Committee of the Red Cross says, “Any order of liquidation is prohibited, whether it concerns commandos … irregular troops or so-called irregular troops … or other cases. It is not only the order to put them to death that is prohibited, but also the threat and the execution, with or without orders.” (24) The prohibition on targeting noncombatant civilians is considered customary law. (25) Some of these objections presume the employment of a law enforcement model in combating terrorists. But that model is irrelevant to targeted killing, which employs military means to target enemy civilian combatants, albeit unlawful combatants, * during an armed conflict. “The problem with the law-enforcement model in the context of transnational terror is that one of its fundamental premises is invalid: that the suspected perpetrator is within the jurisdiction of the law-enforcement authorities in the victim state, so that an arrest can be effected.” (26)

 

Even in the law enforcement model an individual–or in this case, a state-may defend itself from attack, a state’s right to defend itself being embedded in the Charter of the United Nations. Nor are terrorists, particularly those in leadership roles, easily detained for trial.

 

THE ISRAELI VIEW

 

Israel has openly engaged in targeted killing since September 2000 and the second intifada. (27) Even before then, Gerald V. Bull, a Canadian civilian artillery expert, was in the pay of Iraq and well along in building an artillery “supergun” capable of firing a 1,300-pound projectile six hundred miles. From the gun’s location in Iraq, Israel would be an easy target. In March 1990, individuals believed but never proven to be Israeli agents murdered Bull as he entered his Paris apartment.

 

In 1996, a notorious Hamas bomb maker known as “The Engineer” Yehiya Ayash, was killed when he answered a cell phone booby-trapped by the Israelis. (28) His targeted killing was celebrated throughout Israel, but it also initiated a series of retaliatory suicide bombings that killed more than sixty Israelis. In 2000, helicopter-fired missiles killed a Palestinian Fatah leader and deputy of Yasir Arafat; an Israeli general said, “He’s not shooting at us yet, but he’s on his way.” (29) In 2001, Israeli helicopters fired missiles into the West Bank offices of Hamas, killing eight. (30) Later, in 2002, in Gaza, Salah Shehade, the civilian founder and leader of Hamas’s military wing and an individual said by the Israelis to be responsible for hundreds of noncombatant deaths, was targeted. In predawn hours an Israeli F-16 fighter jet dropped a one-ton bomb on the three-story apartment building where Shehade was sleeping. He was killed, along with fourteen others asleep in the building, including nine children. One hundred and seventy were reportedly wounded. (31)

 

Among the most notable of Israel’s targeted killings was that of the wheelchair-bound Sheik Ahmed Yassin, the cofounder of Hamas and its spiritual leader. He was reputedly involved in authorizing terrorist actions against Jews. In March 2004, he was killed by helicopter-fired Hellfire missiles, along with two bodyguards and eight bystanders. Another fifteen were wounded. “The Bush administration felt constrained … to say it was ‘deeply troubled’ by Israel’s action, though later it vetoed a UN Security Council resolution condemning the action. (32)

 

These Israeli actions were not taken in a vacuum, of course. Israeli noncombatants have been victims of countless terrorist attacks; Israel has been involved in numerous international armed conflicts with states employing terrorism, as well as with individual civilians whom Israel later targeted.

 

The LOAC problem with the Israeli view is summed up in the general’s phrase, “He’s not shooting at us yet, but he’s on his way.” The civilian target is presumed to intend direct participation in hostilities. Professor Yoram Dinstein, an Israeli and a foremost LOAC scholar, writes, “attack[s] (which may cause death, injury and suffering) are banned only on condition that the persons concerned do not abuse their exempt status. When persons belonging to one of the categories selected for special protection–for instance, women and children–take an active part in hostilities, no immunity from an ordinary attack can be invoked.” (33)

 

Early in the U.S. conflict against Iraq, Forward, a Jewish daily newspaper, mixing assassination and targeted killing, reported:

 

The Bush administration has been seeking Israel’s counsel on creating a legal justification for the assassination of terrorism suspects…. American representatives were anxious to learn details of the legal work that Israeli government jurists have done … to tackle possible challenges–both domestic and international–to its policy of “targeted killings” of terrorist suspects…. Unlike Israel, which went public in November 2000 with its assassination policy, the Bush administration … officially is opposed to such assassinations and does not acknowledge that it engages in such actions.(34)

 

With the widely reported November 2002 targeted killing of al-Harethi, American deniability of the tactic’s use faded, along with American criticism of Israel’s tactic. The question is whether the United States shares Israel’s broad view of when a terrorist is a lawful target.

 

THE AMERICAN VIEW

 

Although there were dissenters, the United States and much of the Western press was initially critical of the Israeli practice. (35) As early as 1991, however, former president Richard Nixon said that were he still in the White House he would order the assassination of Saddam Hussein. (36) In 2001, the American ambassador to Israel, Martin Indyk, scolded, “The United States government is very clearly on record as against targeted assassinations…. They are extra-judicial killings and we do not support that.” (37) Yet, in 1989, Abraham Sofaer, State Department legal adviser, equivocated: “While the U.S. regards attacks on terrorists being protected in the sovereign territory of other States as potentially justifiable when undertaken in self-defense, a State’s ability to establish the legality of such an action depends on its willingness openly to accept responsibility for the attack, to explain the basis for its action, and to demonstrate that reasonable efforts were made prior to the attack to convince the State whose territorial sovereignty was violated to prevent the offender’s unlawful activities from occurring.” (38) In August 1998, still viewing lethal attacks on individual targets as assassination, a U.S. presidential finding allowed the targeting of Osama Bin Laden, seen as the force behind the bombing of American embassies in Kenya and Tanzania. (39) The United States fired a volley of cruise missiles at an Afghan training compound linked to Bin Laden, saying, “That prerogative arises from a fundamental right of national self-defense.” (40)

 

The 2002 killing of al-Harethi in Yemen attracted dissenters, but by then the United States had found targeted killing a useful weapon in the “war on terrorism.” (41) The killing of al-Harethi had “shift[ed] the war on terrorism into a new gear.” (42) The U.S. change of stance was described as reflecting a broader definition of the battlefield upon which the war on terrorism was being fought. Later, the right of national self-defense was also proffered as justification for targeting individuals associated with terrorist groups, as well as self-defense under article 51 of the United Nations Charter. (43) Under a series of classified presidential findings, President Bush broadened the number of specifically named terrorists who maybe killed if their capture is impractical. (44) In June 2006, the targeted killing of Abu Musab al-Zarqawi, leader of al-Qa’ida in Iraq, was celebrated as a strategic and political victory.

 

In early 2006, it was reported that since 9/11 the United States had successfully carried out at least nineteen targeted killings via Predator-fired Hellfire missiles. “The Predator strikes have killed at least four senior al-Qa’ida leaders, but also many civilians, and it is not known how many times they missed their targets.” (45) The question of whether America shares Israel’s broad view of when a civilian terrorist is a lawful target has not yet been clearly answered. Further U.S. attacks will reveal America’s policy.

 

DOMESTIC LAW

 

A killing in the name of the state must be based upon, or at least not in contravention of, the state’s domestic law. Targeted killing is not contrary to U.S. law.

 

The Constitution’s Fifth Amendment, which protects any person from deprivation of life without due process, is not in play. Recent federal case law holds that the Fifth Amendment does not prohibit American agents from torturing foreign nationals abroad. The same reasoning would appear to apply to targeted killing, the court hypothesizes. (46) More to the point, federal law authorizes the use of U.S. military force to “defend the national security of the United States against the continuing threat posed by Iraq.” (47) Additionally, Congress has authorized the use of “all necessary and appropriate force” against those who carried out the September 11th attacks and all who aided them and “to prevent future acts of international terrorism against the United States.” (48)

 

As long as the targeted killing is related to the continuing threat against U.S. forces in Iraq, or is focused on those involved in the 9/11 attack or on those who aided or harbored them, or is intended to prevent future acts of terrorism against the United States, it does not violate U.S. domestic law and is in accord with Congress’s authorizations of force.

 

CHARACTERISTICS OF TARGETED KILLING

 

The 1949 Geneva Conventions are silent on targeted killing and who might constitute a lawful target. There is no announced American policy directive regarding targeted killing. Assassination is addressed in Executive Order 12333, which does not prohibit killing absolutely but does require presidential approval, which the president may give in secret or otherwise. But assassination and targeted killing are different acts. Given that there is no official protocol, one looks to LOAC for guidelines for the execution of a targeted killing.

 

First, 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 assassination–a homicide and a domestic crime. Moreover, “IHL [international humanitarian law, or LOAC] can only be applicable when the terrorists are involved in an existing international or internal armed conflict, or when the conflict between a state and a terrorist group within its territory rises to the level of an armed conflict.” (49) If one contests the view that an armed conflict is ongoing, the lawfulness of any targeted killing is necessarily contested as well. It is the predicate armed conflict that raises the right to kill an enemy.

 

Second, the victim must be a specific civilian. Obviously, civilian victims may not be random targets. They must be selected by reason of their activities in relation to the armed conflict in progress. Were the identified civilians lawful combatants, uniformed and openly armed, they would be opposing combatants’ lawful targets, with no further discussion merited. On the other hand, it is clear that noncombatants may not be lawfully targeted. (50) But civilians who take up arms

may be. A vital distinction, then, is that between a “civilian” and a “noncombatant.” The two terms are often conflated; such descriptive carelessness is usually irrelevant, but not in this case. The targeted civilian must be a civilian unlawful combatant.

 

A civilian is any person not belonging to one of the categories referred to in Geneva Convention III who is eligible for prisoner-of-war status upon capture. (51) As Additional Protocol I points out, “Civilians shall enjoy the protection afforded by this Section [General Protection against Effects of Hostilities], unless and for such time as they take a direct part in hostilities.” (52) In other words, a civilian who injects himself directly into ongoing hostilities violates the basic concept of distinction and becomes something other than a noncombatant. He forfeits civilian immunity and becomes a lawful target. “For instance, a driver delivering ammunition to combatants and a person who gathers military intelligence in enemy-controlled territory are commonly acknowledged to be actively taking part in hostilities…. [A] person cannot (and is not allowed to) be both a combatant and a civilian at the same time, nor can he constantly shift from one status to the other.” (53)

 

Only a specific civilian may be singled out for targeted killing. If an unaffiliated gathering of civilians is targeted it is unlikely (although possible) that all will have violated the distinction above and thereby made lawful targets of themselves and the entire group, or that all will have shared equally in the unlawful participation in hostilities. Were it otherwise, the forfeiture of immunity by one member of a group’s taking a direct role in fighting would render all group members targets. A critical exception is groups–terrorists, for example–whose membership as a whole is dedicated to active engagement in unlawful combatancy.

 

Third, the individual who has engaged directly in hostilities, the unlawful combatant, must be beyond possible arrest by the targeting state. Since the focus of U.S. targeted killing is on noncitizens abroad, where the United States has no arrest authority, the issue does not arise. Presumably, neither would an allied state be in a position to make an arrest. U.S. constitutional issues, such as probable cause, do not arise when noncitizens abroad are targeted. If capture is possible, however, that option must be exercised. The status of previously targeted civilians would be that of arrestees, subject to interrogation and trial for the precapture acts that rendered them unlawful combatants. (54) They fit none of the various criteria for prisoner-of-war status contained in 1949 Geneva Convention III. (55)

 

Fourth, only a senior military commander, as a representative of the targeting state, may authorize a targeted killing. Of course, the authorizing individual may also be the president or a senior government official to whom the president has delegated targeting authority, such as the secretary of defense or the director of the Central Intelligence Agency.

 

THE AUTHORIZING DECISION

 

Under current directives, the president’s personal approval for specific operations is reportedly not required for persons already designated by him as potential targets. (56) “As commander in chief, the President has the constitutional authority to command the use of deadly force by troops in war, whether it has been declared by Congress or thrust upon us by enemy attack or invasion.” (57) Once beyond targets authorized by the president, what level of military commander may authorize a targeted killing on behalf of the United States? Army commanders? Battalion commanders? Press reports indicate that in Israel such decisions must be approved by “senior cabinet members,” which apparently translates to the prime minister. (58) For the United States, the decision to carry out a targeted killing, with its potential political repercussions, should be made, if not by the president, only by the most senior military officers. The four-star commanders of the five geographically defined unified U.S. commands (Northern Command, Southern Command, Central Command, Pacific Command, and European Command) seem the lowest-ranking military officers who should be delegated such authority. (59)

 

The military commander’s initial consideration is military necessity: Is the planned action indispensable for securing the submission of the enemy? The death of no one person will end global terrorism, but would the killing of this particular target constitute a substantial injury to its cause or seriously disrupt its plans?

 

High among the commander’s considerations is collateral damage. (60) Collateral damage, like proportionality and unnecessary suffering, is a difficult issue allowing for lenient judgment and moral assessment. In 2002, the Israeli chief of military intelligence, haunted by civilian deaths in killings he had overseen, asked a mathematician to write a formula to determine the number of acceptable civilian casualties per dead terrorist. Unsurprisingly, the effort was unsuccessful. (61) Each proposed targeted killing raises its own unique considerations and moral dilemmas. There are no preconceived solutions.

 

DIRECT PARTICIPATION IN HOSTILITIES

 

The lawfulness of targeted killing turns on interpretation of the term “direct participation in hostilities.” As 1977 Additional Protocol I specifies, civilians are not lawful targets “unless and for such time as they take a direct part in hostilities.” (62) For Israel, such activities reportedly include “persons recruiting certain other persons to carry out acts or activities of terror” and “developing and operating funding channels that are crucial to acts or activities of terror,” among other definitions. (63) These are broad definitions of direct participation in hostilities. Professor Raphael Cohen-Almagor, director of the Center for Democratic Studies at the University of Haifa, holds that “Israel has the right and duty to kill these terrorists…. Furthermore, it is justified to kill chiefs of terrorist operations who plan and orchestrate murderous attacks.” (64) Professor Robert K. Goldman of American University’s Washington College of Law offers a U.S.-centric viewpoint, saying, “The basic premise is that the U.S. regards itself as at war with al-Qa’ida. That being the case, it regards members of al-Qa’ida as combatants engaged in war against the U.S.” (65) Is mere membership in al-Qa’ida enough to make a member a target wherever and whenever he may be found, or is something more required?

 

The civilian driver delivering ammunition to combatants and the civilian gathering military intelligence in enemy-controlled territory are arguably actively participating in hostilities. But when does their participation end? May the driver be targeted after he has returned to his starting point and walked away from the truck? May he be targeted when he is being toasted in the mess, late that evening? The next day? What if he were driving an ammunition truck miles away from the scene of any combat activity? May the intelligence gatherer be killed before he actually embarks on his task? Is a civilian POW-camp guard directly participating in hostilities? A civil defense worker who directs military traffic through his town? A civilian clearing land mines placed by the enemy? Is a civilian seated in the Pentagon, controlling an armed Predator over Iraq, directly participating in hostilities? The United States authorizes the arming of civilian defense contract workers in combat zones, and they “may be authorized to provide security services.” (66) Are they directly participating in hostilities?

 

But these conundrums, relating to civilians of no particular political import or military significance, do not describe the probable targeted killing candidate in a war on terrorism. More apropos, when is Pakistan’s al-Qa’ida coordinator a civilian, and when is he an unlawful combatant “directly participating in hostilities”? Only when he is actually engaged in a firefight with American or Pakistani forces? Only when he is actively directing terrorist activities? Or, by virtue of his leadership position, is he not always a legitimate target–when asleep, or when playing with his children? In 2002, was the senior al-Qa’ida lieutenant, al-Harethi, who planned the bombing of the USS Cole, a lawful target while he was on the move in Yemen, fighting no one, formulating no terrorist plan? Israel takes the view that enemy leaders, including strategists who plan and advise, and technical experts are not foot soldiers in the army of unlawful combatants and that they are always legitimate targets, wherever they may be, whatever activity they are engaged in, and require no warning of attack.

 

Civilians are protected unless they take a direct part in hostilities, and only for such time as they do. Professor Antonio Cassese writes, “When civilians taking a direct part in hostilities lay down their arms, they reacquire noncombatant immunity and may not be made objects of attack although they are amenable to prosecution for unlawfully participating in hostilities (war crimes).” (67) But, one may argue, by virtue of their positions, civilians who lead terrorist groups seldom literally pick up arms and so, metaphorically, never lay them down. As Brigadier General Kenneth Watkin, judge advocate general of Canada’s armed forces, says, “It is not just the fighters with weapons in their hands that pose a threat.” (68)

 

Not all law of war scholars agree that terrorists may be targeted only when actually engaged in terrorist activities:

  

If we accept this narrow interpretation, terrorists enjoy the best of both worlds–they can remain civilians most of the time and only endanger their protection as civilians while actually in the process of carrying out a terrorist act. Is this theory, which has been termed the revolving door theory, tenable? … Another argument is that a “combatant-like” approach based on membership in the military wing of a group involved in hostilities, rather than on individual actions, should be adopted in deciding whether persons may be targeted. If we adopt the restricted theory, according to which international terrorists are civilians who may only be targeted while taking a direct part in hostilities, the right of self-defence under Article 51 of the UN Charter … may become meaningless. (69)

 

Is the civilian cofounder of Hamas, Ahmed Yassin–half-blind, paralyzed, and wheelchair-bound, killed as he left morning prayers at a local mosque–immune from attack because he was engaged in innocent activity at the moment of his death? Is Yehiya Ayash, the civilian who constructed diabolically effective bombs but led no combatants, gave neither orders nor instructions, who acted only as a fabricator of tools of insurgency, a lawful target only when actually constructing a bomb? A combatant general–for example, Dwight Eisenhower during World War II–is by virtue of his position of command and authority a legitimate target whenever and wherever he can be found by enemy combatants. Eisenhower, whether in London or Kansas, in civilian clothes or uniform, was always on duty, always an Allied commander, and could have been lawfully killed by any Axis combatant. Should civilian terrorist leaders, and terrorists with critical warmaking skills, be free from the same threat by consciously avoiding lawful combatancy? Should not they, like the uniformed lawful combatants they target, be considered legitimate targets whenever and wherever they are found? It is reasonable that “the effect of the ‘temporal’ wording found in Article 51(3) of Additional Protocol I is significantly more limited than commonly believed.” (70) Columbia University School of Law professor George Fletcher points out:

  

This phrase “direct part” conjures up a picture of someone picking up a gun and aiming it at the enemy. But … ordinary principles of self-defence apply against people pointing guns, whether they are civilians or not. Targeted assassinations are usually aimed at the organizers of terrorist attacks–not those who are aiming weapons…. The targets are the key figures behind the scenes who organize the suicide bombings, the hijacking and other terrorist activities. Are they “taking direct part in hostilities”? I think the phrase lends itself to this construction. (71)

 

Two hundred years ago, the great eighteenth-century legal scholar Emerich de Vattel wrote, “Assassins and incendiaries by profession, are not only guilty in respect to the particular victims of their violences, but likewise of the state to which they are declared enemies. All nations have a right to join in punishing, suppressing, and even exterminating these savages.” (72)

 

One may ask: If civilian terrorist leaders and terrorists with critical skills may be targeted, why not all terrorists? If it is lawful for some to be killed, is it not lawful for all to be killed? Logic compels a positive response: yes, it is lawful for all terrorists potentially to be subject to targeted killing, regardless of their positions or “duties.” But logic and practicality similarly dictate that only senior leaders and particularly dangerous specialists in groups dedicated to unlawful combatancy be singled out for targeted killing. The availability of resources–Predator drones and laser-directed munitions, for example–will severely limit the number of terrorists who may be targeted. The availability of mission planners and support personnel–intelligence officers and agents, communications analysts, and interpreters–is similarly limiting. Just as in past wars, in which only senior combatants–Isoroku Yamamoto, Dwight Eisenhower, Bernard Montgomery, and Erwin Rommel–could be singled out for the demanding effort required for their targeting, so it would inevitably be for today’s terrorists. Finally, the judgment and reason of the senior leaders permitted to authorize targeted killing would also act as a natural brake upon the tactic.

 

That is not to say that a terrorist is a target for life. A soldier is a lawful target only so long as he or she remains a soldier. Soldiers who have retired from armed service and, in the words of 1949 Geneva Convention common article 3, “members of armed forces who have laid down their arms” are no longer combatants or lawful targets. A civilian terrorist who lays down his arms or, more significantly, lays down his arms and departs the combat zone would no longer be a legitimate target. Again, the reason and judgment of those authorized to order targeted killing would act as a brake upon targeting simple terrorist apostates.

 

Determining an individual’s “direct participation” should not be confused with testing for lawfully targeting objects. (73) The criteria for targeting “people” and “objects” differ. Direct participation remains the thorniest issue in targeted killing, something that states and their political leaders and military commanders must resolve in each case, recalling that their resolutions may eventually be under international review. The law of armed conflict boldly states the criteria for targeting but does not clearly apply its criteria to kaleidoscopic real-world situations.

 

ADVANTAGES AND DISADVANTAGES

 

Killing senior terrorists, expert bomb makers, and those who provide philosophical guidance for terrorists may spare countless noncombatant victims while, at the same time, forgoing risk to friendly combatant forces. A successful targeted killing removes a dangerous enemy from the battlefield and deprives the foe of his leadership, guidance, and experience. The targeted killing of terrorist leaders leaves subordinates confused and in disarray, however temporarily. Successors will feel trepidation, knowing they too may be in the enemy’s sights. Targeted killing unbalances terrorist organizations, making them concerned with protecting their own membership and diverting them from their goals.

 

But targeting mistakes are made, whether the intended victim is killed one on one or by missiles. (74) In 1973, in Lillehammer, Norway, Israeli Mossad agents murdered a Moroccan waiter they mistook for a Palestinian involved in killing Israeli athletes at the Munich Olympics the year before. (75) On the Pakistan-Afghanistan border in February 2002, a U.S. Predator tracked and killed a tall individual in flowing robes believed to be Osama Bin Laden. He was not. (76) Tactical situations may change in the moments between the order to fire and impact–women and children enter the impact area, the target moves to cover. Stuff does happen. (77)

 

Innocent bystanders are often killed in targeted killings. Crowded city streets, even isolated houses, inevitably yield “collateral damage” Are the anticipated deaths proportional? What level of probable noncombatant lethality is acceptable? “An extremely strong case has to be made to justify an attack on suspected terrorists when it is likely, not to mention inevitable, that the attack will cause the death of civilians. After all[,] … the military advantages to be gained by targeting them are based largely on speculation.” (78) Does a more significant targeted individual justify a greater potential number of innocent deaths? Does the possible death of Osama Bin Laden justify the probable deaths of five bystanders? Ten? Fifty? In January 2006, in the village of Damadola, Afghanistan, seventeen Afghans died in a futile U.S. missile strike on several houses. The attack was aimed at al-Qa’ida deputy Ayman Zawahiri. (79) American commanders apparently thought the risk of multiple noncombatant deaths was outweighed by the possibility of killing Zawahiri.

 

Targeted killings may prove counterproductive, in that they can instigate greater violence in revenge or retaliation. “I hope it will reduce the violence and bring back reason to this area,” an Israeli major general said in 2000 after three missiles killed a Palestinian leader and two middle-aged female bystanders. (80) Instead, the killings touched off a week of the most intense fighting seen in that round of the conflict.

 

In a world where the enemy has missiles too, a targeted killing by the United States “makes every American official both here and in the Middle East a target of opportunity.” (81) If an expanded interpretation of who constitutes a legitimate civilian candidate for targeted killing is accepted, we must accept that our own nonuniformed leaders and weapons specialists will become legitimate targets. “The United States and countries that follow its [targeted killing] example must be prepared to accept the exploitation of the new policy by adversaries who will not abide by the standards of proof or evidential certainty adhered to by Western democracies.” (82) Some believe the bombing of Pan Am flight 103 over Lockerbie, Scotland, on 21 December 1988, killing 270, was Muammar Qaddafi’s revenge for the 1986 U.S. bombing of his Libyan home that killed his fifteen-month-old daughter. (83) “Many past and present military and intelligence officials have expressed alarm at the Pentagon policy about targeting Al Qaeda members. Their concerns have less to do with the legality of the program than with its wisdom, its ethics, and, ultimately, its efficacy.” (84)

 

It is argued that civilian victims of targeted killing, not afforded an opportunity to surrender, are deprived of due process and denied the “inherent right to life.” (85) The victim is unable to contest that he is a terrorist, seek judicial review, or lodge an appeal; no legal assessment of the legality of the targeting is available. (86) But these objections accompany the initial question of direct participation in hostilities; if an individual is directly involved in hostilities, he forfeits noncombatant immunity and becomes a lawful target. Soldiers engaged in armed conflict are not afforded due-process rights. Even away from the battlefield, “deprivation of life shall not be regarded as a violation of the right to life when it results from the use of force which is no more than absolutely necessary in … defence of any person from unlawful violence.” (87) If considered a case of proportional self-defense, targeted killing would not violate the right to life off the battlefield.

 

With the limitations discussed here, targeted killing is within the bounds of law of armed conflict. Terrorists should not be permitted the shield of Additional Protocol I, article 51.3. This conclusion requires a broader interpretation of article 51.3, granting civilians targeting immunity except when they are directly participating in hostilities, than is currently universally accepted. But expansive interpretations of treaty provisions are not novel. (Although the United States has not ratified Additional Protocol I, article 51.3 is widely considered an expression of customary law.) Dean Anne-Marie Slaughter, of Princeton University’s Woodrow Wilson School of Public and International Affairs and a former president of the American Society of International Law, argues that the United Nations should itself target individuals identified by the Security Council as murderous despots. (She adds, however, “Such a course would never be acceptable, if undertaken by a single nation.”) (88) Still, LOAC is not contravened if a targeted killing is carried out by a nation acting within the parameters described here. In U.S. law, and in the law of armed conflict, the targeting killing of civilians taking a direct part in hostilities, while they are taking a direct part, is not forbidden. The issue is in deciding what constitutes “a direct part.” As always, the devil is in the details.

 

NOTES

 

(1.) There are definitions in scholarly articles–for example, “Premeditated killing of an individual by a government or its agents.” William C. Banks and Peter Raven-Hansen, “Targeted Killing and Assassination: The U.S. Legal Framework,” 37 University of Richmond Law Review (2002-2003), p. 671.

 

(2.) Yves Sandoz, Christophe Swinarski, and Bruno Zimmermann, eds., Commentary on the Additional Protocols of 8 June 1977 [hereafter Commentary] (Geneva: Martinus Nijhoff, 1987), p. 515. Grotius, in his landmark 1625 work, writes, “According to the law of nations, anyone who is an enemy may be attacked anywhere. As Euripides says: ‘The laws permit to harm a foe where’er he may be found'”; Hugo Grotius, The Law of War and Peace (Buffalo, N.Y.: Hein reprint of Kelsey translation, 1995), Book III, chaps. IV, VIII.

 

(3.) 1977 Additional Protocol I [hereafter AP I], art. 43.2. AP I is one of two treaties that update and supplement the familiar 1949 Geneva Conventions: “Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains …) are combatants [and] have the right to participate directly in hostilities.”

 

(4.) UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford, U.K.: Oxford Univ. Press, 2004), [paragraph] 4.1: “Combatants have the right to attack and to resist the enemy by all the methods not forbidden by the law of armed conflict.” See also [paragraph] 5.4.5, listing lawful military objectives (“a. combatant members of the armed forces and those who take a direct part in hostilities without being members of the armed forces [who are not hors de combat]”).

 

(5.) President George W. Bush in Camp David interview, 18 April 2006, available at www.cnn.com/2006/POLITICS/04/18/rumsfeld/. On 1 May 2003, aboard the aircraft carrier USS Lincoln, President Bush wore a military flight suit while announcing the conclusion of armed operations in Iraq.

 

(6.) U.S. Army Dept., Judge Advocate. Memorandum of Law (27-1a), Subject: Executive Order 12333 and Assassination, n.d., reprinted in The Army Lawyer (December 1989), p. 4.

 

(7.) Maj. Matthew J. Machon, “Targeted Killing as an Element of U.S. Foreign Policy in the War on Terror

This article is about U.S. actions, and those of other states, after September 11, 2001. For other conflicts, see Terrorism.

 

The War on Terror (also known as the War on Terrorism

” (25 May 2006, unpublished monograph, School of Advanced Military Studies, U.S. Army Command and General Staff College, Fort Leavenworth, Kansas, on file with author).

 

(8.) Convention (No. IV) Respecting the Laws and Customs of War on Land, with Annex of Regulations [hereafter HR IV], 18 October 1907, Annex 1, 36 Stat. 2277, TS 539 (26 January 1910), art. 23(b).

 

(9.) U.S. Army Dept., The Law of Land Warfare, Field Manual [hereafter FM] 27-10 (Washington, D.C.: U.S. Government Printing Office, 1956), para. 31.

 

(10.) Judge Advocate Memorandum of Law (27-1a), [paragraph] 3.a. Even were targeted killing considered assassination, EO 12333 presents no real impediment to targeting individuals in wartime. An EO is not law, and it may be revoked or excepted by the president as readily as it was applied.

 

(11.) Abraham D. Sofaer, “Terrorism, the Law, and the National Defense,” 126 Military Law Review (1989), p. 117.

 

(12.) Michael Walzer, Just and Unjust Wars, 3d ed. (New York: Basic Books, 2000), pp. 200-201.

 

(13.) Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge, U.K.: Cambridge Univ. Press, 2004), p. 199.

 

(14.) FM 27-10, para. 31.

 

(15.) 1949 Geneva Conventions, common art. 3(1). For hors de combat, Dinstein, Conduct of Hostilities, p. 28.

 

(16.) Seymour M. Hersh, “Manhunt,” New Yorker, 23 and 30 December 2002, p. 66.

 

(17.) “No Holds Barred,” Economist, 9 November 2002, p. 49.

 

(18.) Asa Kasher and Amos Yadlin, “Assassination and Preventive Killing,” 25-1 SAIS Review of International Affairs (Winter-Spring 2005), p. 45.

 

(19.) Yoram Dinstein, War, Aggression and Self-Defence, 4th ed. (Cambridge, U.K.: Cambridge Univ. Press, 2005), p. 180.

 

(20.) “Dr. Condoleezza Rice’s Opening Remarks to Commission on Terrorist Attacks,” 8 April 2004, available at www.whitehouse.gov/news!releases/. Presidential Decision Directive 62, signed in 1998, ordered the secretary of defense to provide transportation to bring individual terrorists to the United States for trial.

 

(21.) Vincent Joel Proulx, “If the Hat Fits, Wear It, If the Turban Fits, Run for Your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists,” 56 Hastings Law Journal (2004-2005), p. 873.

 

(22.) HR IV, art. 23(d).

 

(23.) Anthony Dworkin, “The Killing of Sheikh Yassin: Murder or Lawful Act of War?” Crimes of War Project, 30 March 2004, available at www.crimesofwar.org/onnews/newsyassin.html.

 

(24.) Sandoz, Swinarski, and Zimmermann, eds., Commentary, p. 476.

 

(25.) Prosecutor v. Parle Strugar & Others (ICTY

ICTY International Criminal Tribunal for the former Yugoslavia

 Case IT-01-42-AR72), Appeals Chamber decision of 22 November 2002, paras. 9-10 on interlocutory appeal.

 

(26.) David Kretzmer, “Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?” 16-2 European Journal of International Law (2005), p. 179.

 

(27.) O. Ben-Naftali and K. R. Michaeli, “We Must Not Make a Scarecrow

can’t live up to his name. [Am. Lit.: The Wonderful Wizard of Oz; Am.

 of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings,” 36 Cornell International Law Journal (2003), p. 239.

 

(28.) Keith B. Richburg and Lee Hockstader, “Israelis Kill Arab Militia Official,” Washington Post, 10 November 2000, p. A1.

 

(29.) Deborah Sontag, “Israelis Track Down and Kill a Fatah Commander,” New York Times, 10 November 2000, p. A1.

 

(30.) Clyde Haberman, “Israeli Raid Kills 8 at Hamas Office; 2 Are Young Boys,” New York Times, 1 August 2001, p. A1.

 

(31.) In 2005, I asked an IDF judge advocate who was involved in planning the Shehade operation what he had been thinking to allow a one-ton bomb to be employed in such a manner. His response, inadequate but understandable to any military planner, was, “We f–d up.”

 

(32.) Craig R. Whitney, “War on Terror Alters U.S. Qualms about Assassination,” International Herald Tribune, 29 March 2004, p. 2.

 

(33.) Dinstein, Conduct of Hostilities, p. 150.

 

(34.) Ori Nir, “Bush Seeks Israeli Advice on ‘Targeted Killings,'” Forward, 7 February 2002, p. 1, available at www.forward.com/issues/2003/.

 

(35.) For dissenters, Prof. Robert F. Turner, “In Self-Defense, U.S. Has Right to Kill Terrorist bin Laden,” USA Today, 26 October 1998, p. 17A. For the Western press, “Self-Licensed to Kill,” Economist, 4 August 2001, p. 12 (“Israel justifies these extra-judicial killings as self-defense…. But the usual context of such a discussion would be that the two sides involved were at war…. The barely remembered truth is that the Israeli government and the Palestinian Authority are supposed to be partners in a peace process”) and, “Assassination Ill Befits Israel,” New York Times, 7 October 1997, p. A24 (“Trying to assassinate Palestinian leaders in revenge is not the answer”).

 

(36.) Reuters, “Nixon Solution: He Would Order Hussein Killed,” International Herald Tribune, 15 April 1991, p. 3.

 

(37.) Joel Greenberg, “Israel Reaffirms Its Policy of Assassinating Militants,” New York Times, 6 July 2001, p. A6.

 

(38.) Sofaer, “Terrorism, the Law, and the National Defense,” p. 121.

 

(39.) Bob Woodward and Vernon Loeb, “CIA’s Covert War on Bin Laden,” Washington Post, 14 September 2001, p. A1.

 

(40.) Paul Richter, “White House Justifies Option of Lethal Force,” Los Angeles Times, 29 October 1998, p. A1.

 

(41.) On dissenters, Proulx, “If the Hat Fits,” p. 884: “I contend that targeted killing amounts to a violation of customary international law … effectively stripping the target of his right to claim POW status, which is in direct violation of Articles 4 and 5 of Convention III.”

 

(42.) “No Holds Barred,” Economist.

 

(43.) N. G. Printer, Jr., “The Use of Force against Non-State Actors under International Law: An Analysis of the U.S. Predator Strike in Yemen,” 8 UCLA

UCLA University of California at Los Angeles

UCLA University Center for Learning Assistance (Illinois State University)

UCLA University of Carrollton, TX and Lower Addison, TX

 Journal of International Law and Foreign Affairs (2003), pp. 359-60.

 

(44.) James Risen and David Johnston, “Bush Has Widened Authority of C.I.A. to Kill Terrorists,” New York Times, 15 December 2002, p. A1.

 

(45.) Josh Meyer, “CIA Expands Use of Drones in Terror War,” Los Angeles Times, 29 January 2006, p. A1.

 

(46.) Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 945 (DC Cir. 1988).

 

(47.) 116 Statute 1498: Public Law 107-243 of 16 October 2002, “Authorization for Use of Military Force against Iraq Resolution of 2002,” sec. 3.

 

(48.) Public Law 107-40, 115 Stat. 224 (18 September 2001).

 

(49.) Tom Ruys, License to Kill? State-Sponsored Assassination under International Law, Working Paper 76 (Leuven, Belg.: Institute for International Law, May 2005), available at www.law.kuleuven.ac.be/iir/eng/wp/title.html.

 

(50.) HR IV, art. 25, and 1977 AP I, art. 3 (1)(a) and (d). Also, “It is a generally recognized rule of international law that civilians must not be made the object of attack directed exclusively against them.” UK Ministry of Defence, The Law of War on Land: Part Ill of the Manual of Military Law (London: Her Majesty’s Stationery Office, 1958), para. 13. All nations’ military manuals are in agreement.

 

(51.) AP I, art. 50.1.

 

(52.) Ibid., art. 51.3.

 

(53.) Dinstein, Conduct of Hostilities, pp. 27-28.

 

(54.) FM 27-10, paras. 80, 81; HCJ December 2006), para. 25.

 

(55.) The targeted individual would not fall under Geneva Convention III, art. 4.A(2), as a member of a “volunteer corps, including those of organized resistance movements,” because in the war against terrorism a nonstate enemy cannot be a party to the Geneva Conventions.

 

(56.) David Johnston and David E. Sanger, “Fatal Strike in Yemen Was Based on Rules Set Out by Bush,” New York Times, 6 November 2002, p. A14.

 

(57.) Banks and Raven-Hansen, “Targeted Killing and Assassination,” p. 677, citing The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862).

 

(58.) Laura Blumenfeld, “In Israel, a Divisive Struggle over Targeted Killing,” Washington Post, 25 August 2006, p. A1.

 

(59.) For a listing of commands (less, when visited, African Command) see United States Department of Defense, available at www.defenselink.mil/specials/unifiedcommand.

 

(60.) AP I, art. 51.5(b).

 

(61.) Blumenfeld, “In Israel, a Divisive Struggle.”

 

(62.) AP I, art. 51.3.

 

(63.) Kasher and Yadlin, “Assassination and Preventive Killing,” p. 48. Professor Kasher is an academic adviser to the Israeli Defense Force College of National Defense. Major General Yadlin is the former commander of the same college.

 

(64.) “Targeting Assassination,” Washington Post, 25 April 2004, p. B4.

 

(65.) Esther Schrader and Henry Weinstein, “U.S. Enters a Legal Gray Zone,” Los Angeles Times, 5 November 2002, p. A1.

 

(66.) U.S. Defense Dept., “Contractor Personnel Authorized to Accompany the U.S. Armed Forces,” Instruction 3020.41, 3 October 2005, para. 6.3.5.

 

(67.) Antonio Cassese, “Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists Is Consonant with International Humanitarian Law” (unpublished manuscript on file with author, n.d.), p. 3.

 

(68.) Kenneth Watkin, “Humans in the Cross-Hairs: Targeting and Assassination in Contemporary Armed Conflict,” in New Wars, New Laws? Applying the Laws of War in 21st Century Conflicts, ed. David Wippman and Matthew Evangelista (Ardsley, N.Y.: Transnational, 2005), pp. 137, 147.

 

(69.) Kretzmer, “Targeted Killing of Suspected Terrorists,” p. 193.

 

(70.) Watkin, “Humans in the Cross-Hairs,” p. 155.

 

(71.) George P. Fletcher, “The Indefinable Concept of Terrorism,” 4 Journal of International Criminal Justice (November 2006), p. 898. ICRC writings also support the position that an individual may take an active part in hostilities without touching a weapon. See Sandoz, Swinarski, and Zimmermann, eds., Commentary, pp. 618-19.

 

(72.) Emerich de Vattel, The Law of Nations, or, Principles of the Law of Nature (Northampton, Mass.: Thomas M. Pomroy for S. & E. Buffer, 1805), p. 327. Spelling rendered contemporary.

 

(73.) AP I, art. 52(2).

 

(74.) John R. Crook, “Contemporary Practice of the United States Relating to International Law,” 100-2 American Journal of International Law (April 2006), p. 488, a brief account of a Predator missile intended for Ayman al-Zawahiri, al-Qa’ida’s second in command, killing several noncombatant civilians (and an al-Qa’ida planner) instead. For one-on-one killings, Elissa Gootman, “Israeli Military Says It Regrets Killing of a Palestinian Lecturer,” New York Times, 30 April 2004, p. A6.

 

(75.) Serge Schmemann, “The Harsh Logic of Assassination,” New York Times, 12 October 1997, p. A1.

 

(76.) Meyer, “CIA Expands Use of Drones.”

 

(77.) Secretary of Defense Donald Rumsfeld, Pentagon press briefing, 12 April 2003, available at www.cnn.com/2003/.

 

(78.) Kretzmer, “Targeted Killing of Suspected Terrorists,” p. 201.

 

(79.) Griff Witte and Kamran Khan, “U.S. Strike on M Qaeda Top Deputy Said to Fail,” Washington Post, 15 January 2006, p. A1. Other sources say eighteen noncombatants were killed; see, for example, Daniel Byman, “Targeted Killing, American-Style,” Los Angeles Times (online), 20 January 2006, p. A1.

 

(80.) John Kifner, “Assassination of Palestinian Fuels Fighting in Middle East,” New York Times, 12 November 2000, p. A4.

 

(81.) Thomas Powers, “When Frontier Justice Becomes Foreign Policy,” New York Times, 13 July 2003, p. WK1.

 

(82.) Kristen Eichensehr, “On the Offensive: Assassination Policy under International Law,” 25-3 Harvard International Review (Fall 2003), available at harvardir.org/articles/1149.

 

(83.) See Michael Ashkouri, “Has United States Foreign Policy towards Libya, Iraq and Serbia Violated Executive Order 12333: Prohibition on Assassination?” 7 New England International and Comparative Law Annual (2001), p. 168. On 15 April 1986, in response to an alleged Libyan bombing of a German discotheque frequented by U.S. military personnel, the United States conducted an air attack on Libya (Operation ELDORADO CANYON), striking five military targets, including Qaddafi’s headquarters at the Al-Azzizya Barracks. An estimated 100-150 Libyans were killed, in addition to two U.S. fliers. The UN General Assembly subsequently condemned the U.S. action.

 

(84.) Hersh, “Manhunt.”

 

(85.) “International Covenant on Civil and Political Rights,” art. 6(1). The right to life is the only right referred to in the covenant as inherent, lending it particular significance. Also see “Universal Declaration of Human Rights,” art. 3; the “European Convention for the Protection of Human Rights”; the “African Charter on Human and Peoples’ Rights,” art. 4; and the “American Convention on Human Rights,” art. 4(1).

 

(86.) See McCann & Others v. the United Kingdom, No. 18984/91, 31 Eur. Ct. H. R. (1995), paras. 205-14, in which the European court specifies three requirements for employing lethal force against terrorists: there must be a strict and compelling necessity test; the threat and the targeting state’s response must be proportional; and the targeting state must consider nonlethal alternatives.

 

(87.) Kretzmer, “Targeted Killing of Suspected Terrorists,” p. 177, citing art. 2(2) of the European Convention on Human Rights.

 

(88.) Anne-Marie Slaughter, “Mercy Killings,” Foreign Policy (May-June 2003), p. 73.

 

* An example similar to that described here was the May 1942 assassination of SS Obergruppenfuhrer Reinhard Heydrich, the SS chief of security police, deputy chief of the Gestapo, and the person largely responsible for “the final solution.” He was killed in Prague by two British-trained Czech soldiers disguised as civilians. Although Heydrich was a lawful combatant target, his combatant killers engaged in perfidy by disguising themselves as civilians. His killing was an assassination.

 

* An unlawful combatant is one who takes an active and continuous part in armed conflict who therefore should be treated as a combatant in that he/she is a lawful target of attack, not enjoying the protections granted civilians. Because unlawful combatants do not differentiate themselves from civilians and do not obey the laws of armed conflict they are not entitled to the privileges of combatants, for example, prisoner-of-war status.

 

Gary Solis is a 2006-2007 Scholar in Residence at the Library of Congress, a U.S. Military Academy professor of law (retired), and an adjunct professor of law at Georgetown University Law Center, where he teaches the law of armed conflict. He is a retired Marine with twenty-six years’ active duty, including tours in Vietnam as an armor officer. He attended law school at the University of California at Davis, then was a Marine judge advocate and court-martial judge for eighteen years. He holds a master of laws degree from George Washington University. After Marine Corps retirement he earned a PhD in the law of war from the London School of Economics and Political Science and taught in its Law Department for three years. Moving to West Point in 1996, he initiated the Military Academy’s law of war program. He retired in 2006. His books are Marines and Military Law in Vietnam and Son Thang: An American War Crime. He is writing a law of war casebook.