On April 20, 2010, the BP oil rig explosion set off the dumping of millions of gallons of oil into the Gulf of Mexico.  Images of oil soaked birds, tar balls washing up on beaches, and out-of-work fishermen have been a near constant presence on the nightly news ever since.  The spill—the worst environmental disaster in the country’s history—has caused some to condemn offshore drilling and call for a move toward alternate sources of energy.  One of those alternate sources being championed by some experts is nuclear power, an energy source the experts claim is underutilized.  Leaders also champion nuclear energy as a way to lessen our dependence on oil supplied by foreign countries whose oil wealth allows them to “ignore U.S. policies and to pursue interests inimical to our national security.” While nuclear energy has a relatively good safety record (with the exception of one complete meltdown and a few close calls), a new Finnish film documenting that country’s effort to safely store spent nuclear fuel raises a number of difficult questions dealing with the security of such fuel.  As new nuclear waste is created daily, it is long overdue for the United States to seriously determine how to safely store this dangerous substance.

Nuclear power is created by producing intense heat through nuclear fission.  This intense heat is captured and used to make steam which drives a turbine generator, creating power.  Most nuclear power plants use uranium rods bundled together to create nuclear fission.  Though nuclear energy is extremely clean when compared to burning fossil fuels like oil, nuclear power generation does produce waste.  This waste consists of highly radioactive spent fuel assemblies.  Exposure to such a high level of radioactivity could result in death and turn the surrounding land uninhabitable for decades.  Therefore, it is critical that spent nuclear fuel be completely and securely stored in order to prevent an accidental leak or theft.

The challenge of safely storing the material is complicated by the length it must be stored.  Uranium decays very slowly, maintaining its dangerousness for approximately 100,000 years.  It is hard to fathom this period of time.  The human species as we know it today is believed to have existed for approximately 100,000 years.  The oldest known cave paintings are 30,000 years old.  The pyramids are around 4,500 years old.  The amount of changes that will occur in 100,000 years raises a host of issues.  Once we store the nuclear waste, how can we guarantee continuous surveillance and security to protect the material for 100 centuries?  (Think of all the plundering that occurred once gold was discovered in the pyramids).  How will we be able to communicate to future generations the complicated issues of nuclear waste and radiation given our history of preserving ancient language?  Should we even try to convey the seriousness of the material given the possibility that our message will not be understood properly, thereby only piquing humans’ curiosity of what lies behind those reinforced doors?

A new documentary from Finland poses these questions.  “Into Eternity” is about Onkalo—the world’s first permanent nuclear waste repository.  Onkalo is located in Olkiluoto, approximate 190 miles northwest of Helsinki.  Work began on the concept in the 1970s and its completion is expected in the 2100s, after all the current workers will have deceased.

While the issues presented by a place like Onkalo are vexing, at least Finland has a plan and is progressing toward completion.  The United States currently has no plan beyond studying the issue.  For many years this country’s Onkalo was going to be Yucca Mountain in southwest Nevada.  The Department of Energy (DOE) has had Yucca Mountain on its radar since 1978.  In 2002, after a host of scientific studies and legal challenges, President Bush signed a joint resolution allowing the Energy Department to take the next step in establishing Yucca Mountain as the nation’s nuclear waste depository.  But the 2006 congressional elections swept the Democrats into power, led by Yucca Mountain opponent Senator Harry Reid.  Following Senator Reid’s assumption of power, Congress gradually decreased the funding for the site.  President Obama—another opponent of Yucca Mountain—announced he was abandoning the project and directed Energy Secretary Steven Chu to formally file a motion to withdraw the project’s pending license application while establishing a Blue Ribbon Commission on America’s Nuclear Future which is tasked with a comprehensive review and consideration of alternatives to Yucca Mountain.

But the adjudicatory bodies are not letting the Obama administration abandon Yucca Mountain just as a “matter of policy.”  On June 29th, the Atomic Safety and Licensing Board rejected DOE’s motion to stop the project, ruling that the Nuclear Waste Policy Act of 1982 does not give the Energy secretary the discretion to substitute his policy for the one established by Congress in the Act.  The Board held that according to the 1982 Act, once Yucca Mountain was chosen by Congress, the project would be removed from the political process and the Nuclear Regulatory Commission (NRC) would evaluate the proposal solely on its technical merits.  The day after the board’s ruling, the NRC took the unusual move of ordering an appeal to itself, not waiting for an appeal from the parties.  This is in addition to parallel litigation ongoing in the U.S. Court of Appeals for the D.C. Circuit.  In the background, the federal government is assuming ever increasing money damages for breaching contracts with the nuclear utilities for disposal of nuclear waste.  The damage awards now total over $1 billion (The Blog of the Legal Times provides a good summary of the current status of the litigation).

Whatever the merits of abandoning the Yucca Mountain project, we are falling further and further behind in addressing the question of where to store nuclear waste and have not even begun to contemplate the questions facing the engineers, politicians, and theorists in Finland.  If we embrace nuclear energy as an alternative to oil—a way to both keep money from countries that don’t completely share our interests and decrease the possibility of a disaster on par with the BP spill—our production of nuclear waste will increase, thereby raising the importance of developing a comprehensive waste management strategy.  The most sobering thought of all: Finland has four nuclear reactors.  The U.S. has 104.

Photo courtesy of Christian Science Monitor.

President Barack Obama fired General Stanley McChrystal on June 23, 2010, following a controversial interview with Rolling Stone.  Just hours later, President Obama appointed General David Petraeus, head of United States Central Command and architect of the 2007 surge in Iraq, to replace General McChrystal in leading the Afghan war.  Despite the change in leadership, no change is expected in the current war strategy.

The Interview

General McChrystal’s termination was set in motion by his decision to grant an interview to the magazine Rolling Stone.  Sources close to General McChrystal told Rolling Stone that General McChrystal thought President Obama to be “uncomfortable and intimidated” by senior military officials and called a one-on-one meeting between President Obama and General McChrystal a “photo op” in which President Obama “didn’t seem very engaged” with the issues at hand.

General McChrystal’s top staff members did not appear in the most flattering light themselves.  For example, the Rolling Stone reported that some senior staff members called themselves “Team America,” from the movie Team America: World Police, a film parody about fictional paramilitary police who attempt to save the world from a terrorist plot led by Kim Jong-il.  These staff members also made numerous derisive comments not only about President Obama, but also Vice President Joe Biden; Ambassador Karl Eikenberry; Richard C. Holbrooke, the special envoy to Afghanistan and Pakistan; and James L. Jones, Jr., the National Security Advisor.

But the Economist, at least, has argued in a post-firing article that General McChrystal’s frankness had been a good thing.  General McChrystal was interested in alternative viewpoints and “happily took the press into his confidence.”  The mistake was to include Rolling Stone in that confidence.  The Rolling Stone article “seemed to include every unguarded sentence he, or his aides, might have uttered.”  Nevertheless, the Economist agreed that General McChrystal was worthy of dismissal.

Can Petraeus Win the War in Afghanistan?: An Editorial Roundup

Answering this question first requires a step back: what does it mean to win the war in Afghanistan?  The opinions below discuss the strategy for fighting the war in Afghanistan, but don’t explain what a “win” would look like.  Is it routing out the Taliban?  Creating a strong democracy and a growing economy—and if so, what is the threshold for success?  Whatever a win is, some of the top newspapers are pessimistic about the chances that the United States will achieve it.

The New York Times paints a gloomy picture.  Currently, the war in Afghanistan is going poorly.  NYT notes that to win, General Petraeus will need “a dose of good fortune” in addition to the counterinsurgency strategy that he will implement.  The problem is not just the insurgents themselves, but also the morale of America’s own troops, who are angry over restrictions on using firepower.  Nor are the troops the only ones unhappy with the nuts-and-bolts of the war—senior officials in the Obama administration hold differing views on how the war in Afghanistan should be fought.

The Economist is even more pessimistic.  According to the editors, the problem is not General Petraeus, but rather that the current counter-insurgency strategy devised jointly by Generals McChrystal and Petraeus—the strategy that General Petraeus is likely going to continue—would take more time and effort than America and NATO are willing to give.  One senior NATO official estimated that it would take 13 years to win a counter-insurgency campaign.  The counterinsurgency campaign is only in year two and President Obama has promised to start withdrawing American troops from Afghanistan in July 2011.  A troop shortage will be compounded by the expected withdrawal of 4,500 Dutch and Canadian troops over the next year.

Many of a roundup of foreign policy experts at the Washington Post agree: General Petraeus is good, but something else needs to give if the United States is to stand a chance of winning the war in Afghanistan.  Danielle Pletka, vice president for foreign and defense policy studies at the American Enterprise Institute, believes that Ambassador Eikenberry and Mr. Holbrooke need to go because “they have put politics above the mission and ego above all.”  Kurt Volker, ambassador to NATO from 2008 to 2009, believes the July 2011 pullout date needs to be scrapped because it signals doubt of American commitment to winning.  Zalmay Khalilzad, United States ambassador to Afghanistan, Iraq, and the United Nations during the George W. Bush administration, argues among other changes that General Petraeus will require civil-military cooperation and better relations with the Afghan government and people.

Indeed, success might be entirely outside of American hands.  The Los Angeles Times has argued that it will be difficult to defeat the Taliban as long as it can depend on supply routes and sanctuaries in Pakistan.  In turn, Pakistan’s willingness to cooperate on this front is a political consideration—Pakistan would like to have more influence in Afghanistan than India does—that is out of General Petraeus’s hands.

Image courtesy of the London Telegraph.

Pakistani officials claim to be able to deliver the network of Haqqani, a group affiliated with Al Qaeda, into a power-sharing arrangement.  According to the report, negotiations have been underway for some time, with Pakistan’s Army Chief, Gen. Ashfaq Parvez Kayani, and the nation’s spy chief, Lt. Gen. Ahmad Shuja Pasha, conducting shuttle diplomacy between Islamabad and Kabul.  But the lack of details given to Washington raises concern in some U.S. circles that the negotiations will not only push Karzai further away, but conclude with a separate peace between Afghanistan, Pakistan and the Taliban, leaving American interests to the side and Al Qaeda a base from which to operate.

Some, including President Obama and CIA Director Leon Panetta, are more skeptical that a peace can be reached in the near term.  While Pakistani intelligence and military officials claim the Haqqanis are willing to break with Al Qaeda, many believe that the relationship is too close, and that the negotiations are simply a way of fending off impending military action in both Pakistan and Afghanistan.  While he acknowledged that progress in Afghanistan has been coming more slowly than anticipated, Panetta opined on television that the U.S. has “seen no evidence that [the Taliban] are truly interested in reconciliation.”  Indeed, because of that very lack of progress, many American officials believe the Taliban have no motivation to negotiate seriously, and that they won’t until they fear a military defeat.  President Obama also expressed skepticism, and stressed the varied makeup of the organization, warning that it was “too early to tell” whether the efforts being made to broker a peace accord were genuine.  Administration officials worry that the Haqqani network will be unwilling or unable to break from its more radical elements.

Meanwhile, in an interview that emphasized the potentially varied markup of the coalition forces, the head of the British army, Gen. Sir David Richards, said on BBC Radio this past weekend that talks with the Taliban should start “pretty soon.”  Whether Richards’ view represents a substantive disagreement with his American counterparts’ is unclear.  The beginning of operations in Kandahar should bring some clarity, if not to the war, at least to the various parties’ understanding of how to move forward diplomatically.

Image courtesy of Reuters.

“I hope our wisdom will grow with our power, and teach us that the less we use our power, the greater it will be.”

The words of U.S. philosopher-president Thomas Jefferson adorn the walls of Jefferson Memorial Library at West Point Military Academy.  They reflect the ethos that mastering warfare will not be sufficient to guarantee the pre-eminence of an army.  Rather, it is the wisdom acquired by mastering all forms of knowledge that enables a country to project power through non-military means, which will ultimately determine supremacy.  This article identifies the key factors that have led the U.S. Army to develop leadership that takes into consideration the political, social, and economic aspects of a conflict to devise a nuanced military strategy.

There have been instances when the U.S. military did not live up to Jeffersonian ideals, but in the past 200 years there have also been outstanding American generals who have exemplified the tradition of utilizing force judiciously.  Gen. George Marshall was an equally great diplomat as he was a general.  He foresaw that a broken and wounded Europe could not be healed by another Treaty of Versailles forced upon the defeated powers, but by forging a common vision for a prosperous future.  As architect of the European Recovery Plan, Gen. George Marshall set the foundation for peace that has led to the European Union.

Most recently, when sectarian violence spiraled out of control in Iraq, Gen. David Petraeus turned conventional military thought upside down in devising a counterinsurgency doctrine.  Instead of a search-and-destroy mission, the U.S. military protected the local population to create pockets of security and used diplomacy and patronage to wean support away from al-Qaeda.  In addition to an extra 24,000 troops, the judicious use of the tribal system and collaboration with community leaders resulted in the success of the surge.

We believe the factors that created the leadership that led to this success are:

The World is West Point’s Training Ground

Every year an estimated sixty non-U.S. students join West Point to train with American cadets.  Therefore, success at the Academy requires collaboration across cultural and ideological divides.

This cross-cultural training continues after West Point as the U.S. Army sends officers to work with the leadership of a diverse set of countries.  As a result, individuals have a unique opportunity to understand new cultural and political contexts and develop strong relationships that last long into their careers.  One such example came when General Musharraf of Pakistan conducted a coup in October 1999.  His first call was not to the U.S. State Department, but to Gen. Anthony Zinni.  This shows that working with international leaders gives U.S. officers an unparalleled education in diplomacy and cross-cultural leadership.

Expanding Knowledge and Nurturing Continuous Learning

The U.S. government dedicates a significant portion of its annual defense expenditure to the training of its military.  Evidence of this is the fact that the U.S. Military Academy has a student-faculty ratio of only six to one, resulting in extensive interaction between students and instructors.  In addition, longer duration of training than that of developing country armies allows every cadet to study military science, two years of a foreign language, and subjects as diverse as engineering and liberal arts (including recitation of poetry!).

Post-West Point, U.S. Army officers have extensive learning opportunities such as the Advanced Degree Program to achieve master’s or doctorate degrees and the elite one- year National Security Fellows Program.  Lt. Gen. Tad Oelstrom USAF (ret.), Director of the National Security Program at the Harvard Kennedy School, points out that the National Security Fellows gain exposure to the wealth of experience at institutions such as Harvard University and the Council on Foreign Relations and then take this knowledge back to their operational roles.  These opportunities as well as a formal framework that encourages officers to advance their educational qualifications helps sustain the quest for further knowledge.

Infusing Critical Thinking

The system of education at West Point nurtures a critical mind where acceptance of ideas is won through analytical discourse of facts and reasoning of argument.  For example, a second-year cadet is currently writing an essay on the lessons of My Lai.  By openly discussing one of the darkest events of U.S. military history, West Point allows its cadets to develop the independent and critical thinking that is necessary to ensure that cadets internalize these values for the long-term and the army is adaptive to a changing environment.

Today’s information age has transformed the challenges faced by modern armies.  New technologies are empowering non-state actors to pose unpredictable threats.  It is important that all armies learn key lessons from the way the United States conducts its professional military education to prepare for the challenges of a transformed security environment.

We offer three recommendations for other countries to benefit from the U.S. experience.

Recommendation 1: The United States should increase cross-country participation for cadets and officers from developing countries through joint exercises and greater opportunities to study with U.S. and other militaries.

Why: Such programs improve understanding between militaries, demonstrate positive American values to foreign officers, and give them access to a world-class education that they might not otherwise have.

How: This can be accomplished by expanding the International Military Education and Training (IMET) program to include a greater number of foreign military officers. Executive programs should be introduced for the top ranking officers from developing countries to study with the U.S. National Security Fellows.

Recommendation 2: Armies should build a solid intellectual foundation by reforming current military training curricula to expose officers to a wider range of subjects.  The duration of cadet training should be increased and officers incentivized to seek educational opportunities throughout their careers.

Why: Increasing long-term educational opportunities is important because two years of training may not be sufficient to infuse a new set of values or achieve in-depth knowledge of a wide range of subjects.  In addition, if officers believe their military careers will suffer by pursuing educational training this will prevent them from participating in continuous education opportunities.

How: Armies should increase the duration of training at the military academies to a total of four years.  They should also re-frame the curriculum to increase emphasis on the social and political aspects of security, not only concentrating on tactical military strategy.  A formal framework should be instituted with authorized periods of leave for education without penalizing their military careers.

Recommendation 3: Countries should develop a long-term commitment to educational growth by providing opportunities in a meritocratic system.  Learning should be encouraged through debate and discourse methodology rather than a rote learning method.

Why: A meritocratic system of selection and promotion of officers would ensure that the more competent officers rise, thus providing incentives for other officers to also upgrade their skills and knowledge.  Methods of learning through classroom discussions and debate allow students to deepen and internalize their understanding much more effectively than through rote learning.  This will further equip the cadets with critical thinking skills.

How: The profile of the selection process should be raised and made prestigious, with only the most competent officers being selected.  A greater portion of teaching should be conducted through case studies with cadets taking different positions and arguing from those vantage points.

Conclusion

Wars are no longer about defeating an enemy army and subjugating a local population. They are increasingly about eliminating threats from non-state actors, which cannot be achieved without the support of the local population.  If developing countries fashion the training of their officer cadre on the U.S. model, they will create a military leadership capable of meeting the complex and multi-dimensional security challenges.  More importantly, such an education would instill in their officers the limitations of military power, and this might just deter future military interventions and indirectly contribute to growth of democracy in developing countries.

The case was brought over ten years ago by several humanitarian groups concerned that their activities in relation to the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) would lead to prosecution under the material-support statute.  Both the PKK and the LTTE have been designated as foreign terrorist organizations by the State Department.

Ralph Fertig, a professor at the University of Southern California, argued that the humanitarian groups did not intend to further any illegal activities but instead hoped to “train members of the PKK to use humanitarian and international law to resolve disputes; to engage in political advocacy on behalf of Turkish Kurds; and to teach the PKK to petition groups such as the UN for relief.”

Writing for the majority, Chief Justice Roberts rejected both of the plaintiffs’ main claims.  First, the Court stated that the statute provides fair notice in relation to the plaintiffs’ proposed conduct and therefore is not unconstitutionally vague.  Second, the Court stated that the statute does not violate the plaintiffs’ First Amendment right to free speech.

In addressing the second claim, the majority noted that Congress rejected the plaintiffs’ argument that their support would only advance the legitimate activities of the PKK and LTTE when it passed the material-support statute and that the record confirms that Congress was justified in rejecting the argument.  The Court noted that although it does not defer to the government’s reading of the First Amendment, it is mindful that government agencies charged with combating terrorism have strongly supported Congress’s finding that contributions to terrorist groups further the groups’ illegal activities, even if intended to support legal activities.

The Court clarified that the question is “not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct.  It is instead whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and the LTTE in the form of speech.”  Chief Justice Roberts emphasized that the “statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization,” and does not cover independent advocacy that might be viewed as promoting the group’s legitimacy.

Organizations such as the Carter Center and the American Civil Liberties Union were disappointed by the Court’s ruling.  Former president Jimmy Carter stated that the statute inhibits the work of human rights and conflict resolution groups as well as peacemaking organizations that must interact directly with terrorist groups.

Chief Justice Roberts was joined in his opinion by Justice Kennedy, Justice Thomas, Justice Scalia, Justice Alito, and Justice Stevens.  Justice Breyer wrote a dissent, in which Justice Sotomayor and Justice Ginsburg joined.

The dissent agreed with the majority that the statute is not unconstitutionally vague but argued that the government failed to show that an interpretation of the statute that would prohibit the plaintiffs’ activities serves the government’s compelling interest in combating terrorism.

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I.  Introduction

Imagine that the U.S. intelligence services obtain reliable information that a known individual is plotting a terrorist attack against the United States.  The individual is outside the United States, in a country where law and order are weak and unreliable.  U.S. officials can request that country to arrest the individual, but they fear that by the time the individual is located, arrested, and extradited the terror plot would be too advanced, or would already have taken place.  It is also doubtful that the host government is either able or willing to perform the arrest.  Moreover, even if it did arrest the suspected terrorist, it might decide to release him shortly thereafter, exposing the U.S. to a renewed risk.  Should the United States be allowed to kill the suspected terrorist in the foreign territory, without first capturing, arresting, and trying him?

More than any other counterterrorism tactic, targeted killing operations display the tension between addressing terrorism as a crime and addressing it as war.  The right of a government to use deadly force against a citizen is constrained by both domestic criminal law and international human rights norms that seek to protect the individual’s right to life and liberty.  In law enforcement, individuals are punished for their individual guilt.  Guilt must be proven in a court of law, with the individual facing trial enjoying the protections of due process guarantees. Killing an individual without trial is allowed only in very limited circumstances, such as self- defense (where the person poses an immediate threat) or the immediate necessity of saving more lives.  In almost any other case, it would be clearly unlawful, tantamount to extrajudicial execution or murder.

When agents of a state seek to engage in enforcement operations outside their own territory without consent of the foreign government, they are further constrained by international norms of peaceful relations and the respect for territorial boundaries among states.  Ordinarily, when a criminal suspect finds refuge in another country, the United States would ask the other country for extradition to gain jurisdiction over him.  Even interviewing a person outside of U.S. territory would be unlawful; executing him would be an extremely egregious offense.  Violations of these norms run the risk of replacing law with force and spiraling international violence.

In wartime, governments may use deadly force against combatants of an enemy party, in which case the peacetime constraints are relaxed.  But in war, the enemy combatants belong to another identifiable party and are killed not because they are guilty, but because they are potentially lethal agents of that hostile party.  Moreover, soldiers are easily identified by the uniform they wear.  Once in the uniform of an enemy state, any soldier, by commitment and allegiance, is a potential threat and thus a legitimate target, regardless of the degree of threat the soldier is actually posing at any particular moment: the relaxing, unarmed soldier, the sleeping soldier, the retreating soldier—all are legitimate military targets and subject to intentional targeting.  No advance warning is necessary, no attempt to arrest or capture is required, and no effort to minimize casualties among enemy forces is demanded by law.

The identity and culpability of an individual not wearing a uniform but suspected of involvement in terrorism is far less easily ascertained.  While combatants should not benefit from defying the obligation to distinguish themselves from civilians (wearing civilian clothes does not give a soldier legal immunity from direct attack), the lack of uniform does raise concerns about the ability to identify individuals as belonging to a hostile force.[1] Moreover, joining a military follows a distinct procedure that allows for a bright-line rule distinguishing between those in the military and those outside it (although it hides the dangerous responsibility of civilians who take part in hostile activity without being members of the armed forces).  Joining a terrorist organization does not necessarily have a similar on/off switch; individuals might join the organization or support it in some ways or for some time, but then go back to their ordinary business without any ritual marking their joining or departing.  Identifying individuals as terrorists grows more difficult as organizations, such as Al-Qaeda, become a network of small dispersed cells, or even individuals, making the association with a hostile armed group even more tenuous.

Despite these difficulties, both the United States and Israel (as well as several other countries) have made targeted killing—the deliberate assassination of a known terrorist outside the country’s territory (even in a friendly nation’s territory), usually (but not exclusively) by an airstrike—an essential part of their counterterrorism strategy.  Both have found targeted killing an inevitable means of frustrating the activities of terrorists who are directly involved in plotting and instigating attacks from outside their territory.

Adopting a position on targeted killings involves complex legal, political, and moral judgments with very broad implications.  Targeted killing is the most coercive tactic employed in the war on terrorism.  Unlike detention or interrogation, it is not designed to capture the terrorist, monitor his or her actions, or extract information; simply put, it is designed to eliminate the terrorist.  More than any other counterterrorism practice, it reveals the complexity involved in classifying counterterrorism operations either as part of a war or as a law enforcement operation.

A targeted killing entails an entire military operation that is planned and executed against a particular, known person.  In war, there is no prohibition on the killing of a known enemy combatant; for the most part, wars are fought between anonymous soldiers, and bullets have no designated names on them.  The image of a powerful army launching a highly sophisticated guided missile from a distance, often from a Predator drone, against a specific individual driving an unarmored vehicle or walking down the street starkly illustrates the difference between counterinsurgency operations and the traditional war paradigm.  Moreover, the fact that all targeted killing operations in combating terrorism are directed against particular individuals makes the tactic more reminiscent of a law enforcement paradigm, where power is employed on the basis of individual guilt rather than status (civilian/combatant).  Unlike a law enforcement operation, however, there are no due process guarantees: the individual is not forewarned about the operation, is not given a chance to defend his innocence, and there is no assessment of his guilt by any impartial body.

The uneasiness about classifying and evaluating targeted killings further grows as these operations are carried out outside an immediate battlefield, such as in Yemen, Pakistan, or Somalia.  Justifying targeted killings in those countries faces the challenges of the constraints of peaceful international relations or else a potentially unlimited expansion of the geographical scope of the armed conflict beyond the immediate theater of war.  There are slippery slope concerns of excessive use of targeted killings against individuals or in territories that are harder to justify.  Recent reports about a U.S. “hit list” of Afghan drug lords, even though supposedly taking place in an active combat zone, have sparked criticism that drug lords, even when they finance the Taliban, do not fit neatly within the concept of “combatant,” and must instead be treated with law enforcement tools.[2]

Concerns about the use of targeted killings grow as collateral harm is inflicted on innocent bystanders in the course of attacks aimed at terrorists.  In war, collateral damage to civilians, if proportionate to the military gain, is a legitimate, however dire, consequence of war.  In domestic law enforcement, the police must hold their fire if they believe that there is a danger to innocent bystanders, except where using lethal force against a suspect is reasonably believed likely to reduce the number of innocent deaths.

To make this tactic acceptable to other nations, targeted killings must be justified and accounted for under a set of norms that may not correspond perfectly to either peacetime or wartime paradigms, but is nonetheless respectful of the values and considerations espoused by both.  In this chapter we consider the advantages and disadvantages of choosing either paradigm as our starting point, thereafter subjecting the paradigm to necessary modifications for application to the counterterrorism context.  We do so by assessing the American and Israeli experience in employing targeted killings and its legal, moral, and strategic implications.

II.  The Practice of Targeted Killing

A.  The United States

Countries have been in the business of targeted assassinations for centuries.  The United States has been a more recent participant.  The U.S. Senate Select Committee chaired by Senator Frank Church (the Church Committee) reported in 1975 that it had found evidence of no less than eight plots involving CIA efforts to assassinate Fidel Castro, as well as assassination plots against President Ngo Dinh Diem of South Vietnam and General Rene Schneider of Chile.  During the Vietnam War, the Phoenix Program planned the assassination of Viet Cong leaders and sympathizers.  In 1986, President Ronald Reagan ordered Operation El Dorado Canyon, which included an air raid on the residence of Libyan ruler Muammar Qaddafi.  Qaddafi remained unscathed, but his daughter was killed.

Assassination plots by both the United States and other countries were not publicly acknowledged, justified, or accounted for.  Rather, they were taken to be an element of that part of foreign relations that always remains in the dark, outside official protocol or lawful interaction, unspoken of, but understood to be “part of the international game.”  Many of the plots never became public knowledge; few, if any, enjoyed enduring public acceptance.

The political fallout of the Church Committee’s criticism of the covert assassination program during the Cold War brought President Gerald Ford to promulgate an executive order banning assassinations, a prohibition that was later incorporated into Executive Order 12333 (1981) signed by President Ronald Reagan and that remains in effect today.  The executive order was part of the reason that those responsible for planning military actions prior to 1998 took great care to avoid any appearance of targeting specific individuals.

However, following the 1998 bombings of the American embassies in Kenya and Tanzania, and on the basis of a (secret) favorable legal opinion, President Bill Clinton issued a presidential finding (equivalent to an executive order) authorizing the use of lethal force in self-defense against Al-Qaeda in Afghanistan.  Shortly thereafter, seventy-five Tomahawk cruise missiles were launched at a site in Afghanistan where Osama Bin Laden was expected to attend a summit meeting.  Following the attacks of September 11, 2001, President George Bush reportedly made another finding that broadened the class of potential targets beyond the top leaders of Al-Qaeda, and also beyond the boundaries of Afghanistan.  Secretary of Defense Donald Rumsfeld ordered Special Operations units to prepare a plan for “hunter killer teams,” with the purpose of killing, not capturing, terrorist suspects.  Using the war paradigm for counterterrorism enabled government lawyers to distinguish lethal attacks on terrorists from prohibited assassinations and justify them as lawful battlefield operations against enemy combatants, much like the uncontroversial targeted killing of Japanese Admiral Isoroku Yamamoto while he was traveling by a military airplane during World War II.  According to reports, President Bush also gave the CIA, and later the military, authority to kill U.S. citizens abroad if there was strong evidence that an American was involved in organizing or carrying out acts of terrorism against the United States or U.S. interests.[3]

The first publicly known targeted killing of terrorists outside a theater of active war under the most recent presidential finding was in Yemen in November 2002, when a Predator (unmanned and remotely operated) drone was launched at a car carrying Al-Harethi, suspected of the USS Cole bombing, along with four others, one of whom was an American citizen.  The attack in Yemen was executed with the approval of the government of Yemen, thereby eliminating some of the international legal difficulties associated with employing force in another country’s territory.

Later, the United States engaged in a number of targeted killing operations in Pakistan, not all of which were authorized or approved by the Pakistani government.  One of those operations, carried out in January 2006 and directed at Bin Laden’s deputy, Aiman al-Zawahiri, left eighteen civilians dead while missing al-Zawahiri altogether and drawing fierce domestic criticism of then-Pakistani President Pervez Musharraf.

Since 9/11, Predator drones have reportedly been used dozens of times by the United States to fire on targets in Afghanistan, Iraq, Pakistan, Yemen, and elsewhere.  The targeted killing operations have successfully killed a number of senior Al-Qaeda members, including its chief of military operations, Mohammad Atef.

President Barack Obama’s administration has not changed the policy on targeted killings; in fact, it ordered a “dramatic increase” in the drone-launched missile strikes against Al-Qaeda and Taliban members in Pakistan.  According to commentators, there were more such strikes in the first year of Obama’s administration than in the last three years of the Bush administration.  CIA operatives have reportedly been involved in targeted killing operations in Yemen and Somalia as well, although in Yemen the operations are carried out by Yemeni forces, with the CIA assisting in planning, munitions supply, and tactical guidance.  Obama has also left intact the authority granted by his predecessor to the CIA and the military to kill American citizens abroad, if they are involved in terrorism against the United States.[4]

B.  Israel

Since its creation in 1948, Israel has assassinated various enemy targets, including Egyptian intelligence officers involved in orchestrating infiltrations into Israel in the 1950’s, German scientists developing missiles for Nasser’s Egypt in the 1960’s, Black September members following the Munich Olympics massacre of 1972, and prominent leaders of Palestinian and Lebanese terrorist networks such as the secretary general of Hezbollah in 1992.  Israel even planned an assassination operation against Saddam Hussein after the Gulf War.

But it was only during the Second Intifada, which began in September 2000, that targeted killings became a declared and overt policy in the fight against terrorism.  Since the first publicly acknowledged targeted killing operation by Israel in November 2000, there have been many dozens of such operations, mostly in Gaza and only rarely in the West Bank.  The use of targeted killing operations increased with the level of Palestinian violence and decreased with the prospects of peaceful relations between the parties.  Following waves of suicide bombings, there was a surge in targeted killing operations; when there were declarations of ceasefire or when political processes were underway, operations were halted.

The process for approving targeted killing operations in Israel involves an intelligence “incrimination” of the target, which identifies the target as a person actively involved in acts of terrorism; a plan for the time, place, and means of the attack (most commonly, an airstrike); consideration of the danger of collateral damage; and a review of potential political ramifications.  The complete plan must receive the approval of a top-level political official.  There is no external review process, judicial or other.

The stated Israeli policy is that only members of a terrorist organization who are actively involved in an ongoing and direct manner in launching, planning, preparing, or executing terrorist attacks are lawful targets.  In addition, targeted killing operations will not be carried out where there is a reasonable possibility of capturing the terrorist alive.

The legitimacy and usefulness of the practice of targeted killings has been hotly debated within Israel ever since it became publicly known that Israel was employing them.  No incident illustrates the tension between the benefits of a legitimate procedure meeting due process standards and the national security demands for exigency better than the targeted killing of Salah Shehadeh.  Shehadeh was the head of the military wing of Hamas in the Gaza Strip, and was, according to Israeli intelligence, directly responsible for the killing of scores of Israeli civilians and soldiers and the injury of hundreds of others in dozens of attacks.

Initially, Israeli officials had demanded that the Palestinian Authority arrest Shehadeh.  When the Palestinian Authority declined, the Israeli government sought to capture him directly, but had to forego such plans when it realized that Shehadeh lived in the middle of Gaza City, where no Israeli soldiers had been deployed since 1994, and where any attempt to apprehend Shehadeh would turn into a deadly confrontation.  It was then that Israel decided to kill him.

On the night of July 22, 2002, an Israeli F-16 aircraft dropped a single one-ton bomb on Shehadeh’s house in a residential neighborhood of Gaza City, one of the most densely populated areas on the globe.  As a result, Shehadeh and his aide, as well as Shehadeh’s wife, three of his children, and eleven other civilians, most of whom were children, were killed.  One hundred and fifty people were injured.

Israeli officials claimed that the targeted killing of Shehadeh was designed to prevent him from carrying out future attacks against Israelis.  They asserted that, according to intelligence reports, at the time of his killing, Shehadeh was effectively a “ticking bomb,” in the midst of planning at least six different attacks on Israelis, including one designed as a “mega-attack,” involving a truck loaded with a ton of explosives.

In the aftermath of the attack, there was little disagreement that Shehadeh himself was a justified target.  Nonetheless, television images of funerals of slain children drew fierce criticism both within and outside of Israel.  Legal proceedings were initiated in Britain against the Israel Defense Force’s (IDF) Chief of General Staff, the IDF’s air force commander, and the commander of the Southern Command.[5] A lawsuit under the Alien Tort Claims Statute and the Torture Victim Protection Act was filed by the Center for Constitutional Rights in the Southern District of New York against the head of the Israel Security Agency at the time, Avi Dichter.[6] The claim was subsequently dismissed by the court.[7]

Within Israel, the cars of air force pilots, normally considered demigods in popular Israeli culture, were sprayed with graffiti insults of “war criminal.”  A year later, twenty-seven pilots declared that they would refuse to carry out any additional bombing missions in Gaza.  Israeli leftwing activists petitioned the High Court of Justice to order a criminal investigation into the attack and also to prevent the air force commander—Major General Dan Halutz—from being promoted to Deputy Chief of General Staff (Halutz later became Chief of General Staff, but resigned after the 2006 war in Lebanon).  A criminal proceeding was initiated in Spain by relatives of the victims of the attack on Shehadeh against seven Israeli officials for alleged war crimes (and was later dismissed by a Spanish court).

In a traditional war context, killing fourteen civilians along with the highest military commander of the enemy could be considered proportionate collateral damage.  For comparison’s sake, the special report of the prosecutor of the International Criminal Tribunal for the Former Yugoslavia on the NATO operation in Kosovo determined that ten (and according to some reports, seventeen) civilian casualties were legitimate collateral damage for the attack on the Serbian television station.

But public opinion could not disentangle the proportionality question from the broader political context of the Israeli-Palestinian relationship: the legality and morality of the continued occupation of Gaza and the West Bank (Israel withdrew from Gaza three years later); the perception of failure in conducting the war on terrorism; and the frustration over losing the symbolic struggle over “victimhood” to the Palestinians.

A year after the targeted killing of Shehadeh, ten senior Hamas leaders met in a room on the top floor of a residential building in Gaza.  Bruised by the effects of the Shehadeh operation, the Israeli security agencies decided to use a laser-guided bomb only a quarter of the size of the one used to kill Shehadeh.  The Hamas leaders left the room seconds before the bomb hit.  The top floor was destroyed, but the group escaped with minor scratches.  Had a larger bomb been used, the building would have collapsed, together with the Hamas leadership and civilian residents.

Two years later, in a newspaper interview, Avi Dichter, while admitting that the pre-operation assessment misjudged the level of collateral damage that would result from the attack on Shehadeh, added that “he couldn’t say how many Israelis paid with their lives for the fact that Shehadeh continued to operate long after Israel had the operational capability to harm him, but not the moral will to do it.”  In describing the subsequent failed attack on the Hamas leadership as “a miss,” Dichter lamented, “it was the Hamas’ dream team . . . the ceiling collapsed, but the team got away.  No one knows how many Israelis were killed as a result of the decision [not to use heavier munitions].”[8]

III.  Choosing the Framework

A.  Justifying Targeted Killings—The War Paradigm

The debate within the United States over the lawfulness of targeted killings has remained largely confined to legal scholarship and public commentary; the courts have never addressed it.  The Bush administration, to a large extent, relied on a December 1989 Memorandum of Law (an advisory opinion), issued by the Special Assistant for Law of War Matters to The Judge Advocate General of the Army at the time, W. Hays Parks.[9] The Parks memorandum distinguished the prohibition on illegal assassinations in Executive Order 12333 from lawful targeting of individuals or groups who pose a direct threat to the United States.  The prohibition, argued Parks, applied to covert acts of murder for political reasons.  Legal Advisor to the State Department at the time, Arbaham Sofaer, emphasized in his own statements that the prohibition “should not be limited to the planned killing only of political officials, but that it should apply to the illegal killing of any person, even an ordinary citizen, so long as the act has a political purpose.”[10] Both Parks and Sofaer, however, asserted that this prohibition did not preclude the targeted killing of enemy combatants in wartime or the killing in self-defense of specific individuals who pose a direct threat to U.S. citizens or national security in peacetime.  The latter, both argued, was permissible under the inherent principle of self-defense to which every country was entitled under Article 51 of the United Nations Charter (which allows countries to use force in self-defense after suffering an “armed attack”) and customary international law.  Neither Parks nor Sofaer expounded on what amounts to direct threat.

The Bush administration has favored the paradigm of war, treating terrorists as combatants and justifying the targeted killing of terrorists as equivalent to the lawful killing of members of an enemy force on any battlefield.  Specifically, the administration deemed terrorists to be “unlawful combatants,” targetable and detainable, but denied the rights accorded to lawful detainees, namely, to be treated as prisoners of war if captured.  The Bush administration maintained this position even when the targeted killing took place in Yemen or Pakistan, outside an immediate theater of hostilities such as Afghanistan.  Given that the war on terrorism was a “global war,” the Administration maintained, there could be no geographical boundaries to the theater of war.

However, as we noted in the introduction to this chapter, choosing a war paradigm as governing the targeted killings of suspected terrorists is not devoid of difficulties.  The killing on the basis of blame rather than status, the difficulties in ensuring the accurate identification of the target, and the fact that operations take place outside of a defined battlefield—all make the war paradigm at best a proximate, but by no means a perfect, fit.  The full legal implications of this choice were considered by the Israeli High Court of Justice (HCJ), in its ruling on the Israeli practice of targeted killing operations in Gaza and the West Bank.

A petition was first submitted to the HCJ by a group of Israeli NGOs in late 2001, as the first Israeli targeted killing operations became public, but it was dismissed on grounds of justiciability.  In March 2002, another petition was submitted, and this time, Supreme Court President Aharon Barak ordered the state to respond.  By that time, 339 Palestinians had been killed by targeted killing operations during the Second Intifada: 201 intended targets and 129 innocent bystanders.  No less than seven briefs, covering hundreds of pages of arguments and documents, were submitted to the court.  In his last decision before retiring from the court, President Barak delivered the ruling in December 2006.[11] It is probably the most comprehensive judicial decision ever rendered addressing the legal framework of the “war on terrorism.”

Barak began by accepting that, unlike in the era of the First Intifada, there was now an “international armed conflict” with Palestinian militants, which warranted and justified the use of military means, as governed by customary international law, to combat terrorism.  For Barak, accepting the armed conflict paradigm was, albeit implicitly, a precondition to the justification of targeting operations, going far beyond any law enforcement method.  Furthermore, his choice of an international armed conflict paradigm was singular amongst the opinions of the U.S. Supreme Court as well as most other commentators, which have favored a non-international armed conflict model.  This choice was possibly motivated by the fact that international armed conflicts are subject to more regulation under international law than their non-international counterparts, thereby further constraining the government.

Barak, in his decision, did not discuss the possibility of working within a law enforcement paradigm, or the possibility of relying on Article 51 of the UN Charter to justify the practice.  Indeed, it would have been hard to justify a general practice, employed hundreds of times in the same territory, as an “exceptional measure” under a self-defense paradigm.

But Barak’s acceptance of the war paradigm as applicable to the fight against terrorism was not unqualified.  The remainder of the decision was designed to limit the full application of the laws of war and place further constraints on the legitimacy of targeted killing operations, in comparison with traditional combat.

First, in terms of the classification of terrorists, Barak rejected the government’s claim that these were unlawful combatants, and found, instead, that terrorists were “civilians taking direct part in hostilities.”  This choice of a two-group classification (civilian/combatant) vs. a three-group classification (civilian/ lawful combatant/unlawful combatant) was intended to achieve at least two goals.  The first was to make sure the protections of the Geneva Conventions applied to the armed conflict with Palestinian terrorists and to avoid the American administration’s conclusion that, as “unlawful combatants,” terrorists were entitled to few protections under the laws of war.

Second, by refraining from labeling terrorists as “combatants,” the ruling ensured that unlike combatants on the battlefield, who were all legitimate targets regardless of rank, role, or threat, terrorists would not be targeted on the basis of mere membership in a terrorist organization; instead, an individual culpability of the targeted person, by way of direct participation in instigating and executing terrorist acts, would have to be proven.  A mere membership test in the case of Hamas or some other Palestinian organizations would have been especially prone to over-inclusive application, as alongside their military wings, these organizations also have broad political, social, economic, and cultural operations.

The ruling also departed from the traditional armed conflict paradigm in that it conditioned the legitimacy of targeted killings on the absence of a reasonable alternative for capturing the terrorist.  On the traditional battlefield, no attempt to capture the enemy or warn the enemy in advance is necessary before shooting to kill.  In fact, the court’s requirement to try to apprehend the terrorist is far more easily situated within a law enforcement model of regular policing operations and signifies the uneasiness that the court felt about the war paradigm.

The Supreme Court’s decision also addressed concerns about collateral damage to innocent civilians in the course of targeted killings operations.  At the time the petition was submitted, the ratio of civilians to militants killed by targeted killings operations was 1:3—one civilian for every three militants[12] (the ratio has improved substantially since then, and in 2007, the rate of civilians hurt in targeted killing operations was 2–3 percent).[13] Barak acknowledged the difficulty in determining what number of casualties was “proportionate”:

[O]ne must proceed case by case, while narrowing the area of disagreement.  Take the usual case of a combatant, or a terrorist sniper shooting at soldiers or civilians from his porch.  Shooting at him is proportionate even if as a result, an innocent civilian neighbor or passerby is harmed.  This is not the case if the building is bombed from the air and scores of its residents and passerby are harmed. . . .  The hard cases are those which are in the space between the extreme examples.[14]

Accordingly, the decision placed an emphasis on the procedure by which the targeted killing operation was considered and approved and on the post-factum debriefing of operations, all in an effort to improve the record on collateral harm.  Importantly, however, the decision did not demand a zero civilian casualty policy.  In that, it remained more loyal to the war paradigm than to a policing paradigm.

Barak added that certain incidents might be subjected to judicial review.

The concern about collateral damage also brought the court to stipulate that in certain cases in which there was substantial collateral damage, and depending on the conclusions of an investigation into such incidents, it would be appropriate to compensate innocent civilians who have been harmed.[15]

To conclude, the Israeli Supreme Court sought a middle ground between a more aggressive law enforcement paradigm and a tamer wartime paradigm.  It chose the latter as its point of departure, but then, in consideration of the unique nature of the war on terrorism, added limitations and constraints on the government’s war powers so as to remain as loyal as possible to the basic principles and values of the Israeli legal system.[16]

B.  Justifying Targeted Killings—The Exceptional Peacetime Operations Paradigm

Could the U.S. administration, given the Parks memorandum, justify targeted killings even without relying on the applicability of military powers to a “war on terrorism”?  It would have to find the operation lawful under a reasonable interpretation of the domestic law of homicide; it would have to address major issues of peacetime international law, including human rights laws and the duty to respect the sovereignty of other countries; and, of course, it would have to satisfy the constitutional protections found in the Bill of Rights, to the extent these are applicable abroad.

Domestic law enforcement operations permit shooting to kill a suspected criminal only under very limited circumstances.  These limitations coincide with international human rights norms on the use of force by governments against citizens.  When the suspect imposes no immediate and lethal threat, firing at him to affect an arrest is only constitutional if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm.”[17] There are even greater common law constraints on shooting a suspect where there is a concern about collateral harm to others around the suspect; in such cases, law enforcement officials are required to hold their fire and refrain from risking innocent bystanders.  Still, under the American Model Penal Code § 3.02, the defense of “necessity” or “choice of evils” justifies and thus immunizes conduct “which the actor believes to be necessary to avoid a harm or evil to himself or to another” if the harm to be avoided is greater than that sought to be prevented by the law defining the crime (intentional killing, in this case), and so long as there is no reason to believe the legislature intended to exclude this justification.  Under this statement of the American rule the danger of the harm to be avoided need not be imminent and the rule would justify homicide as well as less serious crimes.  Thus, in some jurisdictions the wording need hardly be stretched to make legal under domestic law the killing of an active participant in a terrorist scheme to kill many others, if that way of aborting the plan is believed to be necessary.  In other jurisdictions the law would have to be changed to allow intentional homicides or consideration of non-imminent harms.

As for international human rights laws, the possibility of using deadly force against individuals who are threatening the security of the state has not been rejected altogether even by international human rights bodies.  The Human Rights Committee, in its response to the Israeli report on the practice of targeted killings, notes only that “[b]efore resorting to the use of deadly force, all measures to arrest a person suspected of being in the process of committing acts of terror must be exhausted.”[18] It adds that such operations must never be carried out for purposes of retribution or revenge, thus implying that they may be legitimate if intended at preemption.

The 2002 Inter-American Commission on Human Rights Report on Terrorism and Human Rights[19] similarly leaves room for the use of deadly force against suspected terrorists, even under a general law enforcement model.  It notes that “in situations where a state’s population is threatened by violence, the state has the right and obligation to protect the population against such threats and in so doing may use lethal force in certain situations.”[20] It goes on to assert the natural implication that, in their law enforcement initiatives, “states must not use force against individuals who no longer present a threat as described above, such as individuals who have been apprehended by authorities, have surrendered or who are wounded and abstain from hostile acts.”[21]

And in its decision in the case of Isayeva, the European Court of Human Rights acknowledged the right of a state—Russia—to use deadly force against Chechen rebels, even when there was no indication that the latter were posing an immediate threat to the Russian forces.[22]

But outside the territory of the United States, the government is also limited by the international norms protecting each state’s sovereignty in using force to capture or kill suspected criminals.  As a general principle of international law, a country is strictly prohibited from engaging in law enforcement operations in the territory of another country, and much more so when the law enforcement operation includes killing a person.  Deadly attacks by air strikes or drones directly implicate the international prohibition on the use of force between states.  How, then, could the government justify targeted killing operations under international law in any way other than relying on a war/combatants paradigm?

The Parks memorandum addresses the question of lawful targeting and unlawful assassinations in peacetime, and argues the following:

The use of force in peacetime is limited by the previously cited article 2(4) of the Charter of the United Nations.  However, article 51 of the Charter recognizes the inherent right of self-defense of nations.  Historically, the United States has resorted to the use of military force in peacetime where another nation has failed to discharge its international responsibilities in protecting U.S. citizens from acts of violence originating in or launched from its sovereign territory, or has been culpable in aiding and abetting international criminal activities.[23]

Parks goes on to give the examples of an 1804–1805 Marine expedition into Libya to capture or kill the Barbary pirates; a year-long campaign in 1916 into Mexico to capture or kill the Mexican bandit Pancho Villa following Villa’s attack on Columbus, New Mexico; the 1928–1932 U.S. Marines’ campaign to capture or kill the Nicaraguan bandit leader Augusto Cesar Sandino; the Army’s assistance in 1967 to the Bolivian Army in its campaign to capture or kill Ernesto “Che” Guevara; the forcing down in 1985 of an Egypt Air plane in Sicily, in an attempt to prevent the escape of the Achille Lauro hijackers; and the 1986 attacks on terrorist-related targets in Libya.

These historical precedents, claims Parks, support the interpretation of the United Nations Charter as authorizing the use of military force to capture or kill individuals whose peacetime actions constitute a direct threat to U.S. citizens or national security.  In a footnote, he adds:

In the employment of military force, the phrase “capture or kill” carries the same meaning or connotation in peacetime as it does in wartime.  There is no obligation to capture rather than attack the enemy.  In some cases, it may be preferable to utilize ground forces to capture (e.g.) a known terrorist.  However, where the risk to U.S. forces is deemed too great . . . it would be legally permissible to employ (e.g.) an air strike against that individual or group rather than attempt his, her, or their capture, and would not constitute assassination.[24]

If so, targeted killings, as they have been used by the United States in Yemen, Pakistan, and elsewhere, may well have been justified without ever relying on a “war on terrorism,” but instead by being framed as an exceptional use of force in self-defense alongside peacetime law enforcement.  Although Parks does not expound upon this point, from his equation of military action in peacetime with that of wartime, it seems he would accept some degree of collateral damage in a peacetime operation under similar logic of a wartime attack.

Choosing a peacetime framework with some allowance for military action is not free from difficulties.  One obvious problem is that the “exceptional” use of force has been turned, in the context of the war on terrorism, into a continuous practice.  In addition, the degree to which countries should be allowed to use force extraterritorially against non-state elements has been debated extensively by both international law and domestic law scholars.  The implications of allowing the use of armed force to capture or kill enemies outside a country’s own territory, and outside a theater of traditional armed conflict, may include spiraling violence, the erosion of territorial sovereignty, and a weakening of international cooperation.

Once the precedent is laid for a broad interpretation of Article 51 of the UN Charter, as existing alongside or as an exception to normal peacetime limitations, it becomes harder to distinguish what is allowed in peace from what is allowed in war.  It is for these reasons that not everyone accepts Parks’ legal reasoning, with critics arguing that any military attack on another country’s territory, outside an armed conflict with that country, amounts to unlawful aggression.  Thus, in the case of Armed Activities on the Territory of the Congo[25], the International Court of Justice, in a decision widely criticized, went as far as to rule that Uganda had no right to use force against armed rebels attacking it from the territory of the Democratic Republic of Congo.  Recently, the U.N. Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, concluded that reliance on the exceptional self-defense argument under Article 51 in support of targeted killings “would diminish hugely the value of the foundational prohibition contained in Article 51.”[26]

Even if justified as an exception to a peacetime paradigm, one obvious precondition for the legality of targeted killing operations outside a theater of war, in consideration of the other countries’ sovereignty, must be that the state in whose territory the terrorist resides either consent to the operation by the foreign power (as in the case of the collaboration between the United States and Yemen) or else would be unable or unwilling to take action against the terrorist (as in the case of targeted killings in Gaza).  On some rare occasions there may be an overwhelming necessity to act without the immediate possibility of obtaining the other country’s consent.

Note that under a law enforcement model, a country cannot target any individual in its own territory unless there is no other way to avert a great danger.  If so, if the Yemeni authorities can capture a terrorist alive, they cannot authorize the United States to engage in a targeted killing operation in its territory or execute one on its own.

To sum up, targeted killings of terrorists by both the United States and Israel have been justified under a war paradigm: in the American case, by treating terrorists as (unlawful) combatants; in the Israeli case, by treating terrorists as civilians who are taking direct part in hostilities.  It seems that a persuasive argument can also be made that under some conditions, targeted killings of suspected terrorists can be justified on the basis of a law enforcement paradigm.  When conducted in the territory of another country, targeted killing must be based on a self-defense exception to the international law prohibition on the use of force, and in consideration of that other country’s sovereignty, should only be executed if that other country either consents to the operation or else is unable and unwilling to interdict the terrorist.

In the conclusion of this chapter, we set forth what the legitimate contours of the use of targeted killing must be.  We conclude that they seem to fit both a more constrained war paradigm and a more lax law enforcement paradigm (although the latter suits more sporadic and measured use of the tactic).  For present purposes it should be noted that if we take the Israeli Supreme Court’s decision as controlling, then the conditions for the legitimacy of targeted killings of terrorists in the armed conflict between Israel and Palestinian militants are not very different from those that would apply under a law enforcement model.  Both would allow the targeted killing of some terrorists in Gaza and both would prohibit—or place greater constraints—on the targeting of suspected terrorists outside a conventional theater of war if the alternative of capture was feasible.

IV.  Strategic Aspects

Even if legally justifiable and morally permissible, the strategic value of employing targeted killings is far from clear and depends very much on the situation.  As with any other counterterrorism tactic, targeted killings carry both strategic benefits and costs.

A.  The Potential Hazards of Targeted Killings

An immediate consequence of eliminating leaders of terrorist organizations will sometimes be what may be called the Hydra effect, the rise of more—and more resolute—leaders to replace them.  The decapitating of the organization may also invite retaliation by the other members and followers of the organization.  Thus, when Israel assassinated Abbas Mussawi, Hezbollah‘s leader in Lebanon, in 1992, a more charismatic and successful leader, Hassan Nassrallah, succeeded Mussawi.  The armed group then avenged the assassination of its former leader in two separate attacks, blowing up Israeli and Jewish targets in Buenos Aires, killing over a hundred people and injuring hundreds more.

Targeted killing may also interfere with important gathering of critical intelligence.  The threat of being targeted will drive current leaders into hiding, making the monitoring of their movements and activities by the counterterrorist forces more difficult.  Moreover, if these leaders are found and killed, instead of captured, the counterterrorism forces lose the ability to interrogate them to obtain potentially valuable information about plans, capabilities, or organizational structure.

The political message flowing from the use of targeted killings may be harmful to the attacking country’s interest, as it emphasizes the disparity in power between the parties and reinforces popular support for the terrorists, who are seen as a David fighting Goliath.  Moreover, by resorting to military force rather than to law enforcement, targeted killings might strengthen the sense of legitimacy of terrorist operations, which are sometimes viewed as the only viable option for the weak to fight against a powerful empire.  If collateral damage to civilians accompanies targeted killings, this, too, may bolster support for what seems like the just cause of the terrorists, at the same time as it weakens domestic support for fighting the terrorists.

When targeted killing operations are conducted on foreign territory, they run the risk of heightening international tensions between the targeting government and the government in whose territory the operation is conducted.  Israel’s relations with Jordan became dangerously strained following the failed attempt in September 1997 in Jordan to assassinate Khaled Mashaal, the leader of Hamas.  Indeed, international relations may suffer even where the local government acquiesces in the operation, but the operation fails or harms innocent civilians, bringing the local government under political attack from domestic constituencies (recall the failed attack in Pakistan on Al-Zawahiri that left eighteen civilians dead).

Even if there is no collateral damage, targeted killings in another country’s territory threatens to draw criticism from local domestic constituencies against the government, which either acquiesced or was too weak to stop the operation in its territory.  Such is the case now in both Pakistan and Yemen, where opposition forces criticize the governments for permitting American armed intervention in their countries.

The aggression of targeted killings also runs the risk of spiraling hatred and violence, numbing both sides to the effects of killing and thus continuing the cycle of violence.  Each attack invites revenge, each revenge invites further retaliation.  Innocent civilians suffer whether they are the intended target of attack or its unintentional collateral consequences.

Last but not least, exceptional measures tend to exceed their logic. As in the case of extraordinary detention or interrogation methods, there is a danger of over-using targeted killings, both within and outside of the war on terrorism.  A particular danger in this context arises as the killing of a terrorist often proves a simpler operation than protracted legal battles over detention, trial, extradition, and release.

B.  The Benefits Nations Seek

At the most basic level, targeted killings, which are generally undertaken with less risk to the attacking force than are arrest operations, may be effective.  According to some reports, the killing of leaders of Palestinian armed groups weakened the will and ability of these groups to execute suicide attacks against Israelis.  By deterring the leaders of terrorist organizations and creating in some cases a structural vacuum, waves of targeted killing operations were followed by a lull in subsequent terrorist attacks, and in some instances, brought the leaders of Palestinian factions to call for a ceasefire.  The Obama administration embraced the targeted killing tactic, holding it to be the most effective way to get at Al-Qaeda and Taliban members in the ungoverned and ungovernable tribal areas along the Afghanistan-Pakistan border or in third countries.

Despite the adverse effects such operations may have on the attitudes of the local population toward the country employing targeted killings, the demonstration of superiority in force and resolve may also dishearten the supporters of terrorism.

Publicly acknowledged targeted killings are furthermore an effective way of appeasing domestic audiences, who expect the government “to do something” when they are attacked by terrorists.  The visibility and open aggression of the operation delivers a clearer message of “cracking down on terrorism” than covert or preventive measures that do not yield immediate demonstrable results.  The result in Israel has been to make a vast majority of citizens supportive of targeted killings, despite the latter’s potential adverse effects.  And, perhaps surprisingly, of all the coercive counterterrorism techniques employed by the United States, targeted killings have so far attracted the least public criticism.

V.  Conclusions

Targeted killing operations display more clearly than any other counterterrorism tactic the tension between labeling terrorism a crime and labeling it an act of war.  If a terror attack is simply a crime, counterterrorism forces would follow the same laws and rules as the Chicago or Miami police department do in fighting crime, where intentional killing could rarely if ever be lawful, other than where necessary in a situation immediately requiring the defense of self or others, or in making an arrest of an obviously dangerous felon.  From the perspective of international peacetime relations, targeted killings face even greater legal constraints when targeting a terrorist outside the state’s jurisdiction.

If a terrorist plan is an act of war by the organization supporting it, any member of any such terrorist organization may be targeted anytime and anywhere plausibly considered “a battlefield,” without prior warning or attempt to capture.

Known or anticipated collateral damage to the innocent is generally prohibited in law enforcement, but is legitimate within the boundaries of proportionality in fighting wars.  In fighting crime, the government’s obligation to protect its citizens applies to all citizens—criminals and innocents.  In fighting wars, the government’s primary obligation is to its own citizens, with only limited concern for the well-being of its enemies.

Assuming, as we do, that states do have a right to defend themselves against acts of terrorism, targeted killings cannot be always illegal and immoral.  But because terrorism is not a traditional war, nor a traditional crime, its non-traditional nature must affect the ethical and strategic considerations that inform targeted killings, the legal justification behind them, and the choice of targets and methods used to carry them out.

As we have shown, targeted killings may be justified even without declaring an all-out “war” on terrorism.  A war paradigm is overbroad in the sense that it allows the targeting of any member of a terrorist organization.  For the United States, it has had no geographical limits.  When any suspected member of a hostile terrorist organization—regardless of function, role, or degree of contribution to the terrorist effort—might be targeted anywhere around the world without any due process guarantees or monitoring procedures, targeted killings run grave risks of doing both short-term and lasting harm.  In contrast, a peacetime paradigm that enumerates specific exceptions for the use of force in self-defense is more legitimate, more narrowly tailored to the situation, offers potentially greater guarantees for the rule of law.  It is, however, harder to justify targeted killing operations under a law enforcement paradigm when the tactic is used as a continuous and systematic practice rather than as an exceptional measure.  Justifying targeted killings under a law enforcement paradigm also threatens to erode the international rules that govern peacetime international relations as well as the human rights guarantees that governments owe their own citizens.

Whichever paradigm we choose as out starting point, greater limitations than those offered by the Parks memorandum or that are currently operating in the American targeted killings program should be adopted.  The limits set by the Israeli Supreme Court—ironically, within the paradigm of wartime operations—are a good place to start.

First, the tactic should not be used unilaterally by the endangered state if the host country of the terrorists is willing and able to act on its own to arrest or disable in a timely manner the source of the threat.  Host country cooperation in capture and extradition must be the first alternative considered.  That is, targeted killings must only be carried out as an extraordinary measure, where the alternative of capture or arrest is unfeasible.

Second, only those who are actively and directly involved in terrorist activities are legitimate targets; not every member of a terrorist organization is or should be.

Third, the fact that terrorists do not wear uniforms should not give them an unfair legal advantage over soldiers in uniform in the sense of immunity from deliberate attack.  But their lack of uniform does raise legitimate concerns about the ability to ensure the correct identification of the target, in terms of personal identity as well as specific culpability.  Any targeted killing operation must therefore include mechanisms in its planning and execution phases that would ensure an accurate identification.  Such mechanisms need not involve external judicial review; judges are neither well situated nor do they have the requisite expertise to authorize or reject an operation on the basis of intelligence reports.  Rather, the system should be based on verified and verifiable intelligence data from different and independent sources, careful monitoring, and safety mechanisms that would allow aborting the mission in case of doubt.

The concern about collateral damage requires specific attention.  Unlike ordinary battlefield strikes, the fact that the targeting forces have control over the time, means, and methods of strike mandates that a heightened degree of care should be exercised to choose an occasion and means that will minimize collateral harm to uninvolved individuals, especially where the operations are carried out outside an immediate conflict zone.  In those cases, we believe that where innocent civilians suffer collateral damage, those injured should generally be compensated.

Finally, the aggression of the targeted killing tactic mandates its measured use in only the most urgent and necessary of cases.  The government’s interest should be to tame violence, not exacerbate it.  Where alternatives exist, they should be pursued, not just as a matter of law but also as a matter of sound policy.

This article appears as a chapter in Gabriella Blum & Philip Heymann, Laws, Outlaws, and Terrorists: Lessons from the War on Terrorism (MIT Press, forthcoming Sept. 2010).

** James Barr Ames Professor of Law, Harvard Law School.

[1] One such famous case took place in July 1973, when the Israeli Mossad assassinated an innocent Moroccan waiter in Lillehammer, Norway, mistaking him for a member of the Black September faction responsible for the Munich massacre.

[2] For a report on the U.S. “hit list,” see Craig Whitlock, Afghans Oppose U.S. Hit List of Drug Traffickers, Wash. Post, Oct. 24, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/10/23/AR2009102303709.html.

[3] Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, Wash. Post, Jan. 27, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/01/26/AR2010012604239.html.

[4] Id.

[5] The latter flew to London in September 2005 following his discharge from the military, but had to stay aboard the plane and return to Israel after being tipped off that he might be arrested.

[6] Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007).

[7] The United States Court of Appeals for the Second Circuit affirmed the dismissal. See Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009).

[8] Amos Harel, Dichter: The Targeted Killing of Hamas Leaders Has Brought About Calm, Ha’aretz, June 1, 2005 (in Hebrew).

[9] Memorandum from W. Hays Parks, Special Assistant to The Judge Advocate Gen. of the Army for Law of War Matters, to The Judge Advocate Gen. of the Army, Executive Order 12333 and Assassination (Dec. 4, 1989) reprinted in Army Law., Dec. 1989, at 4 [hereinafter Parks Memorandum] available at http://www.loc.gov/rr/frd/Military_Law/pdf/12-1989.pdf.

[10] Abraham D. Sofaer, Sixth Annual Waldemar A. Solf Lecture in International Law: Terrorism, the Law, and the National Defense, 126 Mil. L. Rev. 89, 119 (1989).  For further analysis of the Sofaer doctrine, see Kenneth Anderson, Targeted Killing in U.S. Counterterrorism Strategy and Law 24–25 (Brookings Inst., Georgetown Univ. Law Ctr., & Hoover Inst., Working Paper of the Series on Counterterrorism and American Statutory Law, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1415070.

[11] HCJ 769/02 Public Comm. Against Torture in Israel v. Gov’t of Israel (Targeted Killings Case) [2005], available at http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.pdf.

[12] Note that numbers of militants killed include both the intended targets and their armed group associates who were present at the time of the attack and were harmed as a result.

[13] Amos Harel, Pinpointed IAF Attacks in Gaza More Precise, Hurt Fewer Civilians, Ha’aretz, Dec. 30, 2007, available at http://www.haaretz.co.il/hasen/spages/939702.html.

[14] Targeted Killings Case, HCJ 769/02 at ¶ 46.

[15] Id. at ¶ 40.

[16] That the 2008 armed conflict between Israel and Hamas in Gaza looked far more like a conventional war may help explain why, only three years after Barak’s decision, Israeli forces struck numerous Hamas members who would not have necessarily met the strict tests he had imposed.

[17] Tennessee v. Garner, 471 U.S. 1 (1985).

[18] U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: Israel, ¶ 15, U.N. Doc. CCPR/CO/78/ISR (Aug. 21, 2003), available at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/CCPR.CO.78.ISR.En?OpenDocument.

[19] Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116, Doc. 5 Rev. 1 Corr (Oct. 22, 2002), available at http://www.cidh.oas.org/Terrorism/Eng/exe.htm.

[20] Id. ¶ 87.

[21] Id. ¶ 91.

[22] Isayeva v. Russia, 41 Eur. Ct. H. R. 847 ¶ 181 (2005); see also Isayeva v. Russia, App. No. 6846/02, Eur. Ct. H. R. (Nov. 15, 2007).

[23] Parks Memorandum, supra note 9, at 7.

[24] Id. at 8 n.14.

[25] Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), 2005 I.C.J. 116 (Dec. 19).

[26] Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Execution: Study on Targeted Killings, ¶ 41, delivered to the Human Rights Council, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf.

Congress is taking the first step to increase oversight of the much-debated missile defense programs via new spending regulations in the proposed defense appropriations bill.  The Senate Armed Forces Committee inserted language requiring the Missile Defense Agency (MDA) to report baselines for individual projects.

The proposed language would require the MDA to report back to Congress on costs of specific programs.  Agency spokesman Richard Lehner stated that the MDA has reported baselines to Congress since 2005, but those reports lumped spending under one category, the Ballistic Missile Defense System, instead of breaking it down into smaller programs.  The new proposal would allow Congress to know the costs of particular missile systems as well as their value to the military.

Descendent of the Reagan-era Strategic Defense Initiative and the Ballistic Missile Defense Organization, the Missile Defense Agency is responsible for the research, development, and testing of the nation’s missile defense systems.  The MDA manages the Ground-based Midcourse Defense system aimed at locating missiles in Alaska and California as well as development of the European missile shield, which includes plans for layers of defense: land- and sea-based missile interceptors along with other methods still in development.

Another measure of the bill protects the missile defense system in California and Alaska.  In 2009, Secretary Gates announced cuts to a massive interceptor program by Boeing, and another program with Poland and the Czech Republic had already been cut the year prior.  This measure may help assuage some Republicans’ concern over those prior cuts.  It would also require an independent entity to review the system and report back to Congress within six months.

Although the House version of the bill contains language repealing Don’t Ask, Don’t Tell, President Obama, on the advice of Secretary Gates, has threatened to veto it for not cutting the excess programs.

Historically, the MDA has had an annual budget of over $10 billion.  The agency requested $8.4 billion for next year but is likely to receive more.  The House version of the bill authorized $10.3 billion, and the Senate Armed Forces Committee has called for $10.2 billion.

The House version of the bill, which passed on May 28^th by a vote of 229 to 186 and totals $726 billion, includes a provision for $485 million for a second engine for the F-35 Joint Strike Fighter, a program already delayed and over budget that the Pentagon estimates could eventually cost $2.9 billion.  Additionally, the bill designated funds for  C-17 transport planes that the Pentagon has deemed unnecessary.  Some suggest the motivation for such items is either job creation or, more cynically, campaign donations to legislators from the companies set to receive the contracts. The version released by the Senate Armed Forces Committee lacks the provision for the alternate F-35 engine.

Senate Armed Services Strategic Forces Subcommittee head Ben Nelson stated that the funding regulation measure will add transparency and accountability to the program, benefiting both the program and the taxpayers.  The agency was originally a research and development agency, a status that exempted it from the normal rules applying to defense weapons programs.

While campaigning for the 2008 race, Obama criticized President Bush’s missile defense policy as being too willing to pursue unproven technologies.  He instead promised to use only those that are “proven and cost-effective.” Under a policy shift announced in September 2009, the program has become less focused on the traditional conception of a missile defense system located on the country’s borders and capable of shooting down an incoming missile.  Missile defense is now more directed at defending against Iran’s increasing power in the Middle East.  Iranian short- and medium-range missiles could reach Israel and Europe; some, specifically the Shahab III, could potentially carry nuclear warheads.

This shift in policy is unlikely to satisfy critics on the right who view this as leaving a gap in national defense.  It is similarly unlikely to please missile defense critics on the left, who might point to previous failures of missile defense programs to intercept incoming targets in tests or to a recent study by scientists at M.I.T. and Cornell that concluded that the Standard Missile 3 (SM-3) – on which the updated plans rely – is similarly ineffective.  Neither side, however, can fault the increased accountability that comes with reporting individual baselines.

Image courtesy of Wired.com

Over the last week and a half, at least fourteen Americans were detained on terrorism charges in the United States and Yemen in two separate incidents.  Law enforcement officials arrested Mohamed Alessa and Carlos Almonte on Saturday, June 5 at John F. Kennedy Airport as the two allegedly began a trip to join the Somali terrorist organization al-Shabaab.  United States Department of State spokesman P.J. Crowley also confirmed on Monday, June 7 that Yemeni officials have detained at least twelve Americans who are suspected of being a part of Al-Qaeda.

The United States arraigned Alessa and Almonte in the District Court of New Jersey on June 7.  Alessa and Almonte were charged with violating 18 U.S.C. § 956(a)(1), which makes conspiracy to kill, kidnap, maim, or injure persons or damage property abroad a felony punishable by up to life imprisonment.  The complaint recounts an investigation that turned up suspicious behavior and incriminating comments dating back to December 2007, including alleged statements of intent to join al-Shabaab, viewings of videos by radical American-Yemeni cleric Anwar al-Awlaki, and deposits given to an undercover New York Police Department officer totaling $8100 that the defendants believed would be made accessible outside the country.  If the government’s allegations are true, this complaint may indicate that al-Shabaab has stepped up recruitment efforts of late through internet propaganda, potentially as part of an attempt to expand beyond Somalia.

Details about the arrest of a number Americans in Yemen remain sparse.  Various reports indicated that the Americans were part of a group of at least thirty foreigners arrested for alleged connections to Al-Qaeda in the Arabian Peninsula (AQAP), the regional affiliate of the transnational terrorist organization.  All were enrolled in various Arabic language programs in Sana’a, where would-be Christmas Day bomber Umar Abdulmutallab studied prior to embarking upon his plot to destroy an airliner en route to Detroit.  Crowley would not confirm if the United States knew the identity of those taken into custody and as of June 7, the United States had not been given consular access to all twelve detainees.  However, the next day Crowley clarified that he only knew of terrorism charges pending for three Americans, but that there were twenty United States citizens in detention who were suspected of committing various crimes.  Among the foreigners caught up in the Yemeni counterterrorist sweeps was Sharif Mobley, a former nuclear plant maintenance worker from New Jersey who, like Abdulmutallab, had followed al-Awlaki.  Meanwhile, Barry Bujol, a Texan man, was arraigned by a federal grand jury on June 8 on charges of attempted material support to AQAP.

These arrests, which come after the arrests of seven Americans in North Carolina, a Minnesota resident, and a New Jersey resident in separate terrorism plots, Abdulmutallab’s failed plot to bomb an airliner bound for Detroit, the March 2010 arrest of a New Jersey man in Yemen, and Faizal Shahzad’s attempted car bombing of Times Square all in the last year, have renewed concerns about the threats posed by radicalized United States citizens.  Indeed, President Obama’s National Security Strategy, released in May 2010, highlighted the recruitment of United States citizens by terrorist organizations as a threat to be countered.  Similarly, a January 2010 report by the Senate Foreign Relations Committee warned of expanded recruiting efforts by AQAP and al-Shabaab targeting U.S. citizens.  In particular, the presence of thirty-six American ex-convicts and ten radicalized Americans in Yemen raised particular concerns amongst the Committee.

As noted by Dr. Paul Pillar, former Chief of Analysis at the Central Intelligence Agency’s Counterterrorist Center, U.S. citizens pose a unique risk to homeland security because they are not subjected to the same border control procedures that foreigners are (and could evade specific precautions taken against travelers from states identified by the Department of Homeland Security) and are more familiar with their potential targets.  Additionally, Assistant Attorney General for National Security David Kris noted last year that radicalized Americans who returned to the United States would have an easier time recruiting additional individuals due to the credibility gained by their experiences abroad.

It is unclear what has spurred the recent surge in radicalized Americans, but United States citizens seem to be a focus of current recruitment efforts by al-Qaeda and al-Shabaab.  One possible explanation is the influence of Yemeni-American cleric Anwar al-Awlaki.  Al-Awlaki, who is believed to be the first American for whom the United States government has approved targeted killing, is the common link between Abdulmuttab, Bujol, Fort Hood shooter Nidal Hasan, and a number of other attempted terrorists, and was reportedly the inspiration for Shahzad.  Al-Awlaki recently taped a 45-minute interview with al-Qaeda in the Arabian Peninsula calling for jihad against the United States and labeling U.S. civilians as legitimate targets. He has also praised Al Shabaab.  Both Alessa and Almonte showed al-Awlaki videos to the undercover officer, although it is unknown if there are any further ties between the two and the radical cleric.

The charismatic al-Awlaki is relatively unique amongst radicalized clerics in that most of his video appearances are in English, broadening the potential reach of his message amongst Americans.  Al-Awlaki also hints in his videos—as the Senate report fears—that al-Qaeda is targeting non-Arabic individuals for recruitment in an attempt to circumvent counterterrorist border control measures enacted by the United States.  Al-Shabaab’s success in recruiting Americans—reportedly about twenty U.S. citizens have joined the group—may derive from targeting the considerable Somali-American community within the United States, and presents a potentially fruitful source of recruits for various al-Qaeda affiliates.  Reports of deaths amongst American recruits in battle had hurt the Somali organization’s efforts to recruit from the United States.  For now, both the National Security Strategy and the Senate report on the American terrorist threat advocate enhancing interagency cooperation to more effectively track potentially radicalized Americans as a countermeasure to increased terrorist recruitment efforts.

Image courtesy of the Toronto Star

On June 2, 2010, Japanese Prime Minister Yukio Hatoyama resigned.  Though he poetically (or just strangely) claimed that a Japanese songbird he had seen during a recent trip to Korea had signaled to him that it was time to go, the real driving force behind the move was his failure to strike a deal to move the United States’ Futenma air base off of Okinawa.  His party, the Democratic Party of Japan (DPJ), rose to power after a half-century out of government partially due to campaign promises to make Japan a “more equal” partner in its alliance with the United States.

While the United States and Japan have haggled over the base in Okinawa, Russia and Ukraine have come to an agreement extending Russia’s lease on Sevastopol, a port city in Ukraine, to 2042.  There had been considerable anxiety on the part of Russian strategists that if the lease expired later this decade as planned, Russia would lose the primary base of its Black Sea Fleet and, potentially, some of its ability to project force in the region.

These bases, each in a region of vital importance to the respective countries involved, illustrate two totally different approaches to similar problems.  The Japanese difficulty in negotiating an end to the U.S. presence on Okinawa shows the success of alliance and basing agreements based on the self-interest of the host country.  Given the ongoing crisis regarding North Korea, the Chinese navy’s rapid expansion, and ongoing Chinese encroachments on Japanese territorial waters, it should not be surprising that the Japanese public has responded tepidly to proposals that would lessen the protection that the U.S. military base provides.  The Sevastopol agreement, by contrast, is based much more on implicit threats and partisan political differences.  In other words, the Sevastopol agreement, while definitely a win for hardball Russian foreign policy, does not and cannot create or signify a long-term alliance akin to the U.S.-Japan relationship.

The Black Sea has been a focal point of Russian strategy for centuries, and Sevastopol has been the key to Russia’s Black Sea influence.  Indeed, the city was founded as a base for a naval squadron in the same year (1783) that Prince Potemkin founded the Black Sea Fleet.  The base is thus understandably seen by many Russians, including President Medvedev, as a historic symbol of Russian power and an important factor in guaranteeing the stability of the region.  During the Cold War naval standoffs in the Mediterranean, the participating Soviet ships were part of the Black Sea Fleet.  In the recent Russia-Georgia War, the Russians sortied elements of the Black Sea Fleet to fight Georgian naval units and land Russian troops.  Replacing Sevastopol would be hugely expensive and send a strong symbolic message that the Russian navy is slowly ceding its power in the Black Sea.

U.S. ties to Okinawa do not go back as far, but the geostrategic imperative to keep the base is keenly felt by U.S. planners.  After U.S. forces took the island near the end of World War II, it played in important role in plans for a potential nuclear confrontation with the Soviets.  During the Vietnam War, many heavy bomber sorties were launched from Okinawa.  Today, the island’s proximity to Taiwan and China give it an obvious strategic significance.

The role of internal politics shows clearly the important differences in U.S.-Japan and Russia-Ukraine relations.  In Japan, the DPJ maintains a policy toward the United States that is not at all shared by the center-right opposition, the Liberal Democratic Party.  Under Liberal Democrat rule, the Japanese even sent non-combat soldiers to Iraq.  However, partisan differences were not enough to sway the U.S.-Japan alliance, as evidenced by the downfall of Prime Minister Hatoyama.  Hatoyama himself and the Japanese public at large agreed on the necessity of the U.S. alliance despite campaign rhetoric to the contrary.

The Sevastopol agreement, by contrast, represents a partisan political victory that may not have happened at all had the last Ukrainian elections turned out slightly differently.  President Victor Yanukovych represents the pro-Russia mentality largely associated with the Crimean and eastern sections of the country.  His ascension to power constituted a nearly 180-degree turnaround from the policy of the previous administration, which sought full membership in the NATO alliance and closer association with the West.  During the Russia-Georgia War, the pro-NATO Ukrainian government even threatened to blockade the Black Sea Fleet as a gesture of solidarity with Georgia.

Recurring crises and threats arising out of the transport of Russian natural gas through Ukraine and the potential for separatism in the majority-Russian Crimea mean that Ukraine’s accommodation with Russia is made necessary not out of self-interest but fear.  A closer alignment with Russia lowers the likelihood of a future conflict with that nation.  After Georgia’s recent disastrous defiance of Russia, it is not surprising that Ukrainians feel the need to placate its neighbor.

The diametrically opposed views on alliances held by the major Ukrainian parties suggests the ephemeral nature of any Russia-Ukraine agreement.  What will happen to the Russo-Ukrainian alliance in two years when the pro-West party returns to power?  While the U.S.-Japan alliance ebbs and flows in strength, the fundamental alignment of those two countries’ interests have proved enduring in the face of political change.

Image Courtesy of the BBC

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In 2006, Congress enacted two potentially significant restrictions on the government’s ability to collect foreign intelligence information pursuant to FISA.  Against the backdrop of a Foreign Intelligence Surveillance Court of Review (Court of Review) decision that arguably reached an erroneous conclusion about the meaning and scope of FISA’s significant purpose requirement, Congress let stand two restrictions that the Court of Review had placed on the government’s use of FISA.  First, the Court of Review held that if the government’s primary purpose was to prosecute, then the government could use FISA only if it intended to prosecute an alleged terrorist or spy for what the court called a “foreign intelligence crime.”  The Court of Review also held that the government could not use FISA, even when it intended to prosecute for a foreign intelligence crime, if that crime occurred in the “past.”  This Article examines the Court of Review’s decision and argues that the court reached an erroneous conclusion in regard to the scope of the government’s power.  The Article also takes a comprehensive and fresh look at the legislative history of FISA’s purpose requirement, both before and after the Court of Review’s decision.  The Article demonstrates that Congress was keenly aware of the restrictions placed on the government by the Court of Review, and rather than explicitly expressing its will in a Final Conference Report with respect to that decision, it simply voted to repeal the amendment’s sunset provision.  The Article concludes by proposing legislation that would remove both of the restrictions placed on the government by the Court of Review.

Image courtesy of the Huffington Post