Targeted Killing Aff BRIEF

Targeted Killing Aff

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

Table of ContentsDefinitions..............................................................................................................................................1

WITHOUT CLEAR DEFINITION OF ASSASINATION, TARGETED KILLING IS MORALLY INDETERMINATE..............................................................................................................................1CLEAR DEFINITIONS ARE ESSENTIAL TO ASSESS THE MORALITY OF TARGETED KILLING 2THERE IS NO ACCEPTED DEFINITION OF ASSASINATION.........................................................3DEFINING ASSASINATION BY THE MEANS OF KILLING ENCOURAGES NEW METHODS OF CIRCUMVENTION.............................................................................................................................4TARGETED KILLING DEFINED........................................................................................................4ASSASSINATION DEFINED.............................................................................................................5PEACETIME ASSASSINATION DEFINED........................................................................................5WARTIME ASSASSINATION DEFINED...........................................................................................6

THE ARABIC ROOT FOR THE TERM “ASSASSIN”............................................................6THE ROOT OF “ASSASSIN” DOESN’T MATTER BECAUSE THEY ALL POINT IN THE SAME GENERAL DIRECTION.....................................................................................................................6THERE ARE THREE CRITERIONS FOR PEACETIME ASSASSINATION......................................7THERE ARE TWO REQUIREMENTS FOR WARTIME ASSASSINATION.......................................7ASSASSINATION AND TARGETED KILLING DEFINITIONS...........................................................7

Targeted Killing is Not Assassination....................................................................................................8TARGETED KILLING IS NOT ASSASSINATION..............................................................................8TARGETED KILLING FOR SELF-DEFENSE MAKES IT DIFFERENT FROM ASSASSINATION....8TARGETED KILLING IS NOT ASSASINATION................................................................................9TARGETED KILLINGS ARE TANTAMOUNT TO EXTRA-JUDICIAL EXECUTIONS........................9ASSASINATION IS NOT CLEARLY DEFINED................................................................................10TWO CHARACTERISTICS DEFINE ASSASINATION: INTENTIONALITY AND KILLING..............10ASSASINATION IS AN ACT OF “NAMED KILLING”.......................................................................10

Executive Orders on Targeted Killing..................................................................................................12JUSTICE THOMAS BELIEVES THE COURTS DO NOT HAVE THE RIGHT TO SECOND GUESS EXECUTIVE DECISIONS................................................................................................................12MILITARY NECESSITY REQUIRES A CERTAIN KIND AND DEGREE OF FORCE, THAT ACHIEVES A LEGITIMATE MILITARY PURPOSE.........................................................................12EXECUTIVE ORDER 12333 DOESN’T CONDONE ASSASSINATION BUT IS A PREEMPT TO RESTRIVTIVE LEGISTLATION AND TO PRECLUDE INDIVIDUAL AGENCIES FROM ATTACKING FOREIGN OFFICIALS................................................................................................12EXECUTIVE ORDERS ARE MORE EFFECTIVE THAN LEGISTLATION IN TIMES OF CRISIS...13OBAMA CAMPAIGNED ON KILLING OSAMA BIN LADEN............................................................13

Targeted Killing is A Legitimate Form of Self Defense........................................................................14COUNTRIES IN ARMED CONFLICT CAN USE TARGETED KILLING FOR SELF DEFENSE......14TARGETED KILLING IS ISRAELS ONLY WAY OF DEFENDING ITSELF.....................................14


TARGETED KILLING JUSTIFIED BY SELF DEFENSE WHEN IT INCORPORATES THE USE OF DRONE AIR STRIKES.....................................................................................................................14THE DEATH OF NONCOMBATANTS DUE TO THE LAWFUL ATTACK OF A MILITARY OBJECTIVE ISN’T CATEGORIZED UNDER ASSASSINATION.....................................................14PRESIDENT REAGAN STATES THE SELF-DEFENSE ISN’T JUST A RIGHT BUT THAT IT IS A DUTY............................................................................................................................................... 15AS THE LEADER OF LYBIA, COLONEL QADDAFI IS RESPONSIBLE FOR LYBIAN ACTIONS THUS MAKING HIM A LEGITIMATE TARGET...............................................................................15TARGETED KlLLING DOES NOT VIOLATE SOVERIEGNTY; VITAL TO SELF-DEFENSE..........15TARGETED KILLINGS ARE AN ACT OF NECESSITY AGAINST IRREGULAR FORCES, I.E., TERRORIST ORGANIZATIONS......................................................................................................16TARGETED KILLINGS ARE AN ESSENTIAL ELEMENT OF CONTEMPORARY SECURITY ENVIRONMENTS............................................................................................................................16DEADLY FORCE SHOULD NOT BE THE NORM BUT IS PERMISSABLE....................................17LIGITIMACY OF SELF DEFENSE...................................................................................................17KILLING TARGETS INSTEAD OF ARRESTING THEM IS SAFER FOR THE WORLD.................17

Targeted Killing Complies With Just War Theory/ International Laws.................................................18HUMAN RIGHTS CAN SHAPE AND DICTATE TARGETED KILLINGS OPERATIONS.................18JUS AD BELLUM EXTENDS TO DEFENCE AGAINST TERRORISTS..........................................18TARGETED KILLING IS A PROPORTIONAL REACTION TO ATTACKS AND THREATS............18ACTIONS ARE TAKEN TO MAKE SURE TARGETED KILLING IS PROPORTIONAL TO THE COLLATERAL DAMAGE CAUSED.................................................................................................19TARGETED KILLING COMPLIES WITH JUST WAR THEORY......................................................19ASSASSINATION HAS BEEN USED IN THE PAST TO MINIMIZE HARMS TO CIVILLIANS........19TARGETED KILLING IS IN ACCORDANCE WITH THE NORM AGAINST ASSASSINATION.......19THE UNITED NATIONS GRANT THE RIGHT TO SELF-DEFENSE...............................................20TARGETED KILLING MUST COMPLY TO ARTICLE 1 IN SITUATIONS DEALING WITH CIVILLIANS......................................................................................................................................20MILITARY NECESSITY REQUIRES A CERTAIN KIND AND DEGREE OF FORCE, THAT ACHIEVES A LEGITIMATE MILITARY PURPOSE.........................................................................20INTERNATIONAL HUMANITARIAN LAW RESTRICTS THE KILLING OF A PERSON THAT IS NOT IN CUSTODY UNLESS IT IS TO PREVENT FROM POSING A THREAT OF DEATH OR SERIOUS INJURY TO OTHERS.....................................................................................................21UNDER ARTICLE 51 THE US HAS THE RIGHT OF SELF-DEFENSE IN WHICH IT CAN USE MILITARY POWERS........................................................................................................................21TARGETED KILLING IS CONSISTANT WITH STATE’S RIGHT TO SELF-DEFENSE..................21MILITARY NECESSITY REQUIRES A CERTAIN KIND AND DEGREE OF FORCE, THAT ACHIEVES A LEGITIMATE MILITARY PURPOSE.........................................................................22PRESIDENT BUSH’S REASONING FOR ATTACKING AFGHANISTAN, AND BLAMING OSAMA BIN LADEN......................................................................................................................................22THE NATIONAL SECURITY STRATEGY WAS JUSTIFICATION FOR MOVING INTO IRAQ.......22THE MORALITY OF TARGETED KILLING CAN ONLY BE DECIDED CASE-BY-CASE...............23TARGETED KILLINGS DO NOT VIOLATE INTERNATIONAL BANS ON KILLING OR WOUNDING “TREACHOROUSLY”......................................................................................................................23TARGETED KILLINGS MORAL STATUS IS CONDITIONALLY VARIABLE...................................23THE EUROPEAN COURT AUTHORIZES TARGETED KILLING....................................................24TARGETED KILLING CAN BE LAWFUL.........................................................................................24

Targeted Killing and War Time............................................................................................................25


ASSASINATION/TARGETED KILLINGS ARE NOT MORALLY PERMISSIBLE IN PEACETIME...25IMMANENT THREATS JUSTIFY PEACETIME ASSASINATIONS/TARGETED KILLINGS...........25MILITARY LEADERS ARE LEGITIMATE WAR-TIME ASSASINATION TARGETS........................25

Targeted killing Does Not Undermine Due Process............................................................................27Targeted Killing Breaks Apart Terrorist Organizations.........................................................................28

TARGETED KILLING MAY CREATE DISRUPTIONS IN TERRORIST ORGANIZATIONS............28TERRORISTS ACTS DECLINE DUE TO TARGETED KILLING.....................................................28TARGETED KILLINGS FORCE TERRORISTS INTO HIDING........................................................28TARGETED KILLING BENEFITS PREVENTING TERRORISM.....................................................29TARGETED KILLING PROVIDES ADVANTAGE IN DEALING WITH TERRORISTS.....................29TARGETED KILLLING UNDERMINES TERRORIST GROUPS.....................................................30TARGETED KILLING EFFECTS TERRORISM; BOOMERANG EFFECT......................................30TARGETED KILLING IMPROVES PREVENTION OF TERRORISM..............................................319/11 BROUGHT ON THE NATIONAL SECURITY STRATEGY AND BROUGHT PEOPLE TO THE REALIZATION THAT TERRORISM IS DANGEROUS AND SHOULD BE TREATED AS SUCH.. .31THE NATIONAL SECURITY STRATEGY PUT FORTH THREE GOALS........................................31UNITED STATES POLICY CHANGE ON HOW TO DEAL WITH TERRORISM.............................32TERRORISM IS A CONSTANT THREAT........................................................................................32PRESIDENT BUSH WAS ENCOURAGED TO ENACT A POLICY THAT INVOLVES “TARGETED KILLING”..........................................................................................................................................32TERRORIST LEADERS ARE LEGITMIATE WAR-TIME ASSASINATION TARGETS...................32

Targeted Killing Is Retributive..............................................................................................................34TARGETED KILLING AVENGES DEATH OF CITIZENS................................................................34IF FAMILIES ARE AVENGED TARGETED KILLING IS SUPPORTED...........................................34

Civilians and Targeted Killing..............................................................................................................35TARGETED KILLING COMPLIES WITH INTERNATIONAL HUMANITARIAN LAW......................35TARGETED KILLINGS HAVE SPECIFIC PROTOCOLS TO BE ADHERED TO DURING WARTIME......................................................................................................................................................... 35TARGETED KILLING ADHERES TO THE DISCTINCTION NORM JUSTIFYING IT......................35COLLATERAL DAMAGE DOESN’T DEJUSTIFY TARGETED KILLING.........................................35WHEN TARGETED KILLING IS USED, ISRAELI AND THE UNITED STATES TAKE ACTION TO MINIMIZE HARM TO CIVILIANS.....................................................................................................36TARGETED KILLING MINIMIZES RISKS TO CIVIILLIANS............................................................36CIVILIANS ARE PROTECTED FROM INTENTIONAL ATTACKS UNTIL MILITARY OBJECTIVES ARE DETERMINDED TO BE SUFFIECIENTLY IMPORTANT........................................................36INTERNATIONAL HUMANITARIAN LAW RESTRICTS THE KILLING OF A PERSON THAT IS NOT IN CUSTODY UNLESS IT IS TO PREVENT FROM POSING A THREAT OF DEATH OR SERIOUS INJURY TO OTHERS.....................................................................................................37ISRAELI TWO-CATEGORY APPROACH TO TARGETED KILLING PERMITS CIVILIANS BEING SUBJECT TO TARGETED KILLINGS.............................................................................................37THE DEATH OF NONCOMBATANTS DUE TO THE LAWFUL ATTACK OF A MILITARY OBJECTIVE ISN’T CATEGORIZED UNDER ASSASSINATION.....................................................38

Targeted Killing Upholds Due Process................................................................................................39DUE PROCESS RESTRICTIONS ON TARGETED KILLING ARE “ABSURD”...............................39TARGETED KILLING DOES NOT ABANDON DUE PROCESS; ISRAEL PROVES.......................39DUE PROCESS AND TARGETED KILLING ARE NOT INCOMPATIBLE; US SUPREME COURT PROVES..........................................................................................................................................40STATUS QUO USE OF TARGETED KILLING INCLUDES DUE PROCESS PROTECTIONS.......40



PROGRESSIVE AFF – JULIAN ASSANGE

Because I agree with Otto Pick, Professor at the London School of Economics and Political Science, (COLLECTIVE SECURITY, 1974, p. 15), that “Security is an essential precondition of an ordered human existence” and that “governments must provide a secure environment which would allow people to pursue their economic and social goals without undue anxiety and fear” that I affirm the resolution: Resolved: Targeted killing is a morally permissible foreign policy tool. Today’s round should be adjudicated based on whichever team best supports national security because, “The concept of security covers every facet of life.” By demonstrating that targeted killing is a vital means of ensuring security, the affirmative will offer an argumentative proof for affirming the resolution. The negative must either demonstrate the inadequacy of the argumentative proof constructed by the first affirmative speech or identify impacts that outweigh the affirmative and, thus, warrant negating the resolution.

Before developing my argument, I offer the following definitions:

Targeted Killing: a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that ‘the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims’) (Melzer, 2008 (Nils, PhD researcher of law. Targeted Killing in Law. Oxfordshire, in South East England: Oxford University Press, p. 3).)

To support my argument for today’s resolution, I offer the following contentions:

CONTENTION ONE: CYBER SECURITY IS A CRITICAL THREAT TO US NATIONAL SECURITY

Leaven&Dodge 2010 (Tod&Christopher, civil litigation attorney, J.D. candidate, The United States Cyber Command: International Restrictions V Manifest Destiny, North Carolina Journal of Law & Technology, (2010), P.17-18)

Cyber-attacks present difficulties to the United States that are unique and original that any currently proposed international treaty the United States enters will eventually become adverse to the interests of the United States at one point or another. To be sure, this may have been true for several past treaties, but nearly every aspect of cyber-warfare is more complex, versatile, and easily accessible to enemies of the United States than any other past or present threat to national security. Entering into a treaty at this point could tie the hands of United States security forces security, as opposed to preventing or stopping any threat. In fact, "the apparent ease with which a cyber attack may be carried out without [*27] attribution could make it impossible to fight back at all." n143 The mere activation of USCYBERCOM shows that the United States will not stay idle in cyber-warfare. Domestic improvements are simply more appealing to the United States in combating cyberwarfare than entering into an international treaty at this time. Going forward, USCYBERCOM should only be the beginning in creating U.S. cyber-security forces.

CONTENTION TWO: WIKILEAKS AND JULIAN ASSANGE ARE A THREAT TO THE NATIONAL SECURITY OF THE UNITED STATES AND ITS ALLIES

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Targeted Killing AffSUBPOINT A: ASSANGE VIOLATED NATIONAL SECURITY LAWS

Michaels, 2010 (Jim, Reporter, “WikiLeaks actions: An act of cyberwar?”, USA Today, December 14, http://www.usatoday.com/news/world/2010-12-14-wikileaks14_ST_N.htm, accessed July 14, 2011, np)

Adm. Michael Mullen, chairman of the Joint Chiefs of Staff, has said WikiLeaks' publishing of stolen documents endangers lives and gives enemies valuable information. Assange's lawyers say a huge file of unreleased secret material will be made public if the United States attempts to prosecute him. Assange's actions warrant a cyberattack, some say. Christian Whiton, a former State Department official under the Bush administration, says WikiLeaks is a foreign organization trying to impede U.S. policy. "Assaulting the company electronically is something worth trying," Whiton says. "It buys you time to go after the organization in other ways." Experts say the government is struggling with developing rules that will govern such warfare, particularly when fighting unconventional enemies. Launching a cyberattack could raise sovereignty issues if, for example, servers were located in a friendly country. "Every time one question is answered, more questions pop up," says Army Lt. Col. Robert Fanelli, a computer sciences assistant professor at West Point. Lin says key questions are what constitutes an attack and when would it be justified. Assange has been accused by the Justice Department of violating national security laws, but he hasn't been identified as an enemy.

SUBPOINT B. ASSANGE IS LEADING AN INTERNET INTIFADA

New York Daily News, 2010 (Staff Editorial, Cyberwarfare isn't science fiction, it's here, as attacks on perceived enemies of WikiLeaks showed, New York Daily News, http://articles.nydailynews.com/2010-12-13/news/27084196_1_wikileaks-cyberwarfare-islamic-terror, accessed on July 14, 2011, np)

The latest breed of anarchist is not a protester who takes to the streets, Molotov cocktail in hand. His weapon of choice is the laptop and his battleground the Internet, which he uses to steal information or to disrupt life in the digital age. The personification of these Internet intifadists is Julian Assange of WikiLeaks infamy.

CONTENTION THREE: THEREFORE, THE UNITED STATES FEDERAL GOVERNMENT SHOULD IDENTIFY JULIAN ASSANGE AS A TARGET FOR ELIMINATION VIA TARGETED KILLING

CONTENTION FOUR: ELIMINATING ASSANGE WILL INCREASE THE SECURITY OF THE US AND ITS ALLIES

SUBPOINT A: JULIAN ASSANGE SHOULD BE ELIMINATED, LIKE OTHER “HIGH VALUE” TARGETS

Kuhner, 2010 (Jeffrey, Columnist & President @ Edmund Burke Institute, Assasinate Assange?, The Washington Times, http://www.washingtontimes.com/news/2010/dec/2/assassinate-assange/print/, accessed on July 14, 2011, np.)

This is the greatest diplomatic crisis since the late 1940s, when communist agents in the U.S. government provided atomic secrets to the Soviet Union. The world is witnessing the absurd, almost

http://www.washingtontimes.com/news/2010/dec/2/assassinate-assange/print/

http://articles.nydailynews.com/2010-12-13/news/27084196_1_wikileaks-cyberwarfare-islamic-terror

http://www.usatoday.com/news/world/2010-12-14-wikileaks14_ST_N.htm

Targeted Killing Affsurreal spectacle of the American superpower standing helpless in the face of a lone hacker. Her diplomatic secrets are no longer safe; her allies and friends are being betrayed; and her cyber-enemies are free to roam with impunity. America is no longer feared or respected. Attorney General Eric H. Holder Jr. vows that he is looking into possible criminal charges against Mr. Assange. It is too late for tough talk. At this point, we are beyond indictments and courts. The damage has been done; people have died - and will die because of the actions of this puerile, self-absorbed narcissist. News reports say the WikiLeaks founder is hiding out in England. If that’s true, we should treat Mr. Assange the same way as other high-value terrorist targets.

SUBPOINT B. INACTION REGARDING ASSANGE THREATENS THE U.S.’S MORAL AND LEGAL LEGITIMACY

Kuhner, 2010 (Jeffrey, Columnist & President @ Edmund Burke Institute, Assasinate Assange?, The Washington Times, http://www.washingtontimes.com/news/2010/dec/2/assassinate-assange/print/, accessed on July 14, 2011, np.)This is what he wanted all along. The 39-year-old Australian poses as a champion of government “transparency.” He likes to grandstand for the media as an idealist, a brave whistleblower who only wants the truth to come out against U.S. “imperialism.” The Swedish government has accused him of sexually assaulting two women. Mr. Assange is an anti-American radical who wants to see the United States defeated by its Islamic fascist enemies. His goal is to humiliate America on the world stage, to drain it of all moral and legal legitimacy - especially regarding the wars in Iraq and Afghanistan.

Because of the importance of cyber security to the economic, social and military security of the United States, and because of the imminent threat posed by Assange and Wikileaks, I affirm the resolution, Resolved: Targeted killing is a morally permissible foreign policy tool. Targeted Killing preserves security which, as I argued earlier, “is the essential precondition of an ordered human existence.”



DefinitionsJus ad bellum (Latin for "right to wage war"; see also Just War) are a set of criteria that are consulted before engaging in war, in order to determine whether entering into war is justifiable.WITHOUT CLEAR DEFINITION OF ASSASINATION, TARGETED KILLING IS MORALLY INDETERMINATE

Knoepfler, 2010 (Stephen, JD, “Dead or Alive: The Future of U.S. Assasination Policy Under a Just War Tradition, NYU Journal of Law and Liberty 5.457, p. 464)

Indeed, recent memory should give us great pause. Prohibitions on government action only matter if they have substantive meaning, and they lose substance if they can be redefined or ignored on a whim. What, then, is a prohibition on torture if it is described in such a way as to exclude from its reach every act imaginable, short of that which is proscribed by some other prohibition? Lawyers know the art of distinguishing facts, situations, and scenarios. Almost every case can be distinguished in some way from a prior, constraining precedent. We should be worried about those who say, "Here is the law, I will simply ignore it," or those who say to their lawyer, "I know this is forbidden, but I am going to act anyway. Find me a loophole." Prohibitions are meant to proscribe behavior ex ante, not to facilitate avoidance through ex post justification or distinguishing. In order to be effective, prohibitions must clearly define what is allowed and what is not allowed. Otherwise, they permit decisions to be made ad hoc, even after the fact. When life and liberty are at stake, as is the case in torture and assassination, it does no good to the target of that treatment if it is determined only after the fact that a particular behavior was impermissible and should never have been performed in the first place. For if one discovers only later that the action was forbidden, there is no way to take it back; the target has already been killed or tortured. Both the target of torture or assassination and the actor who could be prosecuted for it have an interest in upfront clarity as to whether the action about to be taken is permitted or forbidden - the potential actor because he wishes to know what is permissible n48 and the person acted upon because if it is impermissible, the potential actor will have an incentive to comply with the rule. Prohibitions provide advance protections to ensure that banned actions are not taken. A clear definition of assassination, then, is necessary to determine what is permitted and what is forbidden under both E.O. 12,333 and just war theory.

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Targeted Killing AffCLEAR DEFINITIONS ARE ESSENTIAL TO ASSESS THE MORALITY OF TARGETED KILLING

Knoepfler, 2010 (Stephen, JD, “Dead or Alive: The Future of U.S. Assasination Policy Under a Just War Tradition, NYU Journal of Law and Liberty 5.457, p. 467-468)

Like torture, assassination has a clear negative connotation but a vague definition. One commenter perhaps said it best: "Assassination can be defined very broadly or very narrowly. Depending on the breadth of definition, assassination could define any intentional killing, or it could define only murders of state leaders in the narrowest of circumstances." n49 I think it best to define it broadly, in accordance with the common, everyday use of the word. Although its negative connotation will stick with it regardless of how it is defined, it is assassination's denotation with which we are most concerned. First, we want to know what it is, and then, we want to know when it is permissible under just war theory and the law.An analogy can be made to war. Certainly war has a negative connotation, and there are those who would wish to see an end to all wars. However, as we will see, n50 there are limited times when war is morally permissible, just as it is permissible under international law. There are just wars and there are unjust wars, but they are both wars. We don't redefine just wars as something other than war or define war so as to exclude just wars; instead, we distinguish between permissible and impermissible war, defined broadly. Doing so allows us to separate our definition from our judgment. It allows us to say what something is before we label it right, wrong, legal, or illegal. So, too, with assassination. Our definition ought to reflect what we understand assassination to be, not what we think it ought to be. We should define it broadly with the meaning it is understood to have, and then sort out the details about its legal and moral permissibility later. Opponents and proponents alike have attempted to inject normative assessments into the naming of certain "assassination-like" acts by calling similar acts different things to convey moral approbation or disapprobation, as the case may be. n51 Thus, [*468] different terms have been used, including "named killing," n52 "targeted killing," n53 "preventive killing," n54 and "extra-judicial executions," n55 depending on the user's attitude toward the action. Although E.O. 12,333 makes assassination illegal, n56 and thus it is understandable why authors may want to define assassination so as to comport current U.S. policy with the law, as we will see later on, there is a legal remedy to this restriction. n57 For now, let us put normative and legal constraints out of our mind and define what assassination is.










Targeted Killing AffTHERE IS NO ACCEPTED DEFINITION OF ASSASINATION


As one would expect, there is no universally accepted definition of assassination. n58 There are those who would associate "assassination" with terms like "murder." n59 For these commenters, a killing must be illegal and satisfy all of the requirements of murder for it to be an assassination. n60 The problem with defining assassination in [*469] this way, though, is that it is circular. n61 Murder is a legal term. Murder, by definition, is an illegal killing. In the United States, one does not commit murder until one is proven beyond a reasonable doubt to have killed someone in violation of the law. No assassination could therefore occur until the perpetrator is convicted of murder. Thus, any "ban" on assassination could be avoided by simply never prosecuting and never convicting anyone of murder: an administration could argue that the ban was never violated because no legally-proven murder ever occurred. Similarly, to define assassination in terms of murder is to make any ban on assassination legally superfluous, as the act is already, by definition, banned anyway. n62 Thus, E.O. 12,333 would have no effect except to make a statement to the world that the United States does not sanction particular kinds of murder. n63 Furthermore, using murder or "illegal killing" to define assassination allows those taking an "assassination-like" action to argue that their actions are not assassination because they are otherwise legal, thus leading to the "carving out [of] oxymoronic categories of "lawful assassination.'" n64 As I stated earlier, we should be wary of this sort of behavior. Under the Bush Administration, torture was universally recognized as illegal, so much effort was put in to explaining how the "torture-like" interrogation techniques that investigators wanted to be able to perform did not amount to or were not torture. In the same way, much effort could be made, and in fact has been made, to do just that with regard to assassination: to use the legality of the killing (i.e., the fact that it doesn't qualify as murder) to explain how various assassination-like acts should not be labeled "assassination" under the executive order's ban.








Targeted Killing AffDEFINING ASSASINATION BY THE MEANS OF KILLING ENCOURAGES NEW METHODS OF CIRCUMVENTION


The classification of a particular act as a murder does not depend on the particular means used to bring about the killing. This is probably in part because we don't want to encourage individuals to think of new and creative ways to kill one another so as to avoid prosecution. But we also don't require a specific means because we don't think of the means as a necessary component of the definition of murder. It's a murder regardless of whether you perform the act in public or private, with a gun or a knife, during the day or at night. These considerations might matter in terms of degree - that is, how much distaste we have for a particular form of murder - but they do not matter to our determination whether an act is a murder. The same is true of assassination. n67 We ought to define assassination broadly and determine what, if any, means are permissible, rather than argue that assassination can only occur by certain means. Although we may have a paradigm image of how assassinations are brought about, and although that paradigm may include concepts such as stealth or treachery, these are not necessary components, as we can imagine assassination scenarios where these elements would not be present. Certainly, John F. Kennedy's assassination occurred quite suddenly, and Lee Harvey Oswald was able to assassinate him rather secretly. But Oswald was apprehended soon [*472] afterward, so we wouldn't want to say that simply because a killer was caught, the act was not sufficiently "secret" to qualify as an assassination. Similarly, John Wilkes Booth surreptitiously entered Abraham Lincoln's box at Ford's Theatre and killed him suddenly with a gun shot. Although he managed to get to Lincoln's box secretly, there was no secret that he was the President's killer as he leapt quite theatrically to the stage and declared "Sic semper tyrannis!" Although one might expect some level of secrecy in any assassination attempt, it need not occur. For example, John Hinckley Jr. shot Ronald Reagan in broad daylight, amidst a crowd, and was immediately apprehended. Most people probably consider this to be an assassination attempt, but had Reagan died from the gunshot, the event would still hardly conjure up our images of a stealthy, treacherous, paradigm assassination. One might argue that any attempt to kill the president utilizes "treacherous" means, but then it is really the target of the attempt that makes the action "treacherous," not the means used. In truth, in defining assassination, we care more about who the target is than we care about how they were killed.

lex lata: what the laws really isde lege ferenda: what the law ought to be

TARGETED KILLING DEFINEDMelzer, 2008 (Nils, PhD researcher of law. Targeted Killing in Law. Oxfordshire, in South East England: Oxford University Press, p. 3).

Targeted killing: a use of lethal force by a subject of international law that is directed against an individually selected person who is not in custody and that is intentional (rather than negligent or reckless), premeditated (rather than merely voluntary), and deliberate (meaning that ‘the death of the targeted person [is] the actual aim of the operation, as opposed to deprivations of life which, although intentional and premeditated, remain the incidental result of an operation pursuing other aims’)

http://ejil.oxfordjournals.org/content/20/2/449.full

http://ejil.oxfordjournals.org/content/20/2/449.full


Targeted Killing AffASSASSINATION DEFINEDParks, 1989 (W. Hays, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, “Memorandum on Executive Order 12333 and Assassination.” Department of the Army: Office of the Judge Advocate General of the Army. (November 2, 1989) www.hks.harvard.edu/cchrp/Use%20of%20Force/.../Parks_final.pdf accessed July 10, 2011).While assassination generally is regarded as an act of murder for political purposes, its victims are not necessarily limited to persons of public office or prominence. The murder of a private person, if carried out for political purposes, may constitute an act of assassination. For example, the 1978 “poisoned-tip umbrella” killing of Bulgarian defector Georgi Markov by Bulgarian State Security agents on the streets of London falls into the category of an act of murder carried out for political purposes, and constitutes an assassination. In contrast, the murder of Leon Klinghoffer, a private U.S. citizen, by the terrorist Abu el Abbas during the 1985 hijacking of the Italian cruise ship Achille Lauro, though an act of murder for political purposes, would not constitute an act of assassination. The distinction lies not merely in the purpose of the act and/or its intended victim, but also under certain circumstances in its covert nature.5 Finally, the killing of Presidents Abraham Lincoln, James A. Garfield, William McKinley, and John F. Kennedy are regarded as assassination because each involved the murder of a public figure or national leader for political purposes accomplished through surprise attack.

PEACETIME ASSASSINATION DEFINEDParks, 1989 (W. Hays, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, “Memorandum on Executive Order 12333 and Assassination.” Department of the Army: Office of the Judge Advocate General of the Army. (November 2, 1989) www.hks.harvard.edu/cchrp/Use%20of%20Force/.../Parks_final.pdf accessed July 10, 2011).Assassination in peacetime. In peacetime, the citizens of a nation – whether private individuals or public figures – are entitled to immunity from intentional acts of violence by citizens, agents, or military forces of another nation. Article 2(4) of the Charter of the United Nations provides that all Member States “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purpose of the United Nations.”Peacetime assassination, then, would seem to encompass the murder of a private individual or public figure for political purposes, and in some cases (as cited above) also require that the act constitute a covert activity, particularly when the individual is a private citizen. Assassination is unlawful killing, and would be prohibited by international law even if there was no executive order proscribing it.

http://www.hks.harvard.edu/cchrp/Use%20of%20Force/.../Parks_final.pdf



WARTIME ASSASSINATION DEFINEDParks, 1989 (W. Hays, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, “Memorandum on Executive Order 12333 and Assassination.” Department of the Army: Office of the Judge Advocate General of the Army. (November 2, 1989) www.hks.harvard.edu/cchrp/Use%20of%20Force/.../Parks_final.pdf accessed July 10, 2011).Assassination in wartime. Assassination in wartime takes on a different meaning. As Clausewitz noted, war is a “continuation of political activity by other means.”6 In wartime the role of the military includes the legalized killing (as opposed to murder) of the enemy, whether lawful combatants or unprivileged belligerents, and may include in either category civilians who take part in the hostilities.7The term assassination when applied to wartime military activities against enemy combatants or military objectives does not preclude acts of violence involving the element of surprise. Combatants are liable to attack at any time or place, regardless of their activity when attacked.8 Nor is a distinction made between combat and combat service support with regard to the right to be attacked as combatants; combatants are subject to attack if they are participating in hostilities through fire, maneuver, and assault; providing logistic, communications, administrative, or other support; or functioning as staff planners. An individual combatant’s vulnerability to lawful targeting (as opposed to assassination) is not dependent upon his or her military duties, or proximity to combat as such. Nor does the prohibition on assassination limit means that otherwise are lawful; no distinction is made between an attack accomplished by aircraft, missile, naval gunfire, artillery, mortar, infantry assault, ambush, landmine or booby trap, a single shot by a sniper, a commando attack, or other, similar means. All are lawful means for attacking the enemy and the choice of one vis-à-vis another has no bearing on the legality of the attack. If the person attacked is a combatant, the use of a particular lawful means for attack (as opposed to another) cannot make an otherwise lawful attack either unlawful or assassination.

THE ARABIC ROOT FOR THE TERM “ASSASSIN”Machon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 11-12)One valid and logical argument claims the word is derived from assassiyun, Arabic for fundamentalists, from the root assass, or foundation.36 The Assassins of the Middle Ages were a radical sect of Ismaili Shia, fundamentalists, who sought to restore true Islam and spread the true faith to the ends of the earth by targeting and killing the rulers and leaders of the existing order –monarchs, generals, ministers, and major religious functionaries.

THE ROOT OF “ASSASSIN” DOESN’T MATTER BECAUSE THEY ALL POINT IN THE SAME GENERAL DIRECTIONMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 12)Regardless of the root derivative of the Arabic word, this radical sect of Ismaili Muslims in the Middle Ages introduced the word ‘assassin’ into most modern European languages. In general, “it means a murderer, more particularly one who kills by stealth and treachery, whose victim is a public figure and whose motive is fanaticism or greed.”


Targeted Killing AffTHERE ARE THREE CRITERIONS FOR PEACETIME ASSASSINATIONMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 12-13)When a state of war does not exist, COL W. Hays Parks contends “peacetime assassination, then, would seem to encompass the murder of a private individual or public figure for political purposes.”40 Many scholars categorize assassination as a subset of murder where the target is chosen based on his identity, prominence, public position and the killing motivated to achieve some political objective.41 Colonel Parks rationalizes that a peacetime killing, in order to constitute assassination, may also require the act to constitute a covert activity.42 This monograph adopts the analysis of Major Tyler Harder, in which he summarizes most definitions of peacetime assassination and establishes the requirement for the following three elements to be present: (1) a murder, (2) of a specific individual, (3) for political purposes.43 For a killing in peacetime to qualify as an assassination, all three of these criteria must be met.

THERE ARE TWO REQUIREMENTS FOR WARTIME ASSASSINATIONMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 13-14)Assassination in wartime, according to Professor Michael Schmitt, one of the leading scholars on the legal aspects of targeted killing and assassination, comprises two elements: (1) the specific targeting of a particular individual and (2) the use of treacherous or perfidious means.47 Treachery and perfidy are not to be confused with surprise and deception, which are legal in accordance with the law of war. Treacherous or perfidious acts can be classified as “acts inviting confidence of an adversary to lead them to believe that they are entitled to, or are obliged to accord, protection under the rules of international law applicable in armed conflict, with the intent to betray that confidence.”48 In order for a wartime killing to constitute an assassination, the act would require the targeting of a specific individual accomplished through treachery (a violation of the law of war). Therefore, if the law of war is not violated, an assassination has not taken place.

ASSASSINATION AND TARGETED KILLING DEFINITIONSMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 14)Assassination: Peacetime Assassination: the murder of a specifically targeted individual for a political purpose. Wartime Assassination: the murder of a specifically targeted individual by treacherous or perfidious means.Targeted Killing: the intentional slaying of a specific individual or group of individuals undertaken with explicit governmental approval.


Targeted Killing is Not AssassinationTARGETED KILLING IS NOT ASSASSINATIONFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P. 714-715) As a preliminary matter, this Article will refer to attacks against specific alleged terrorists, such as those the United States and Israel have engaged in, as "targeted killings," not "assassinations" or "extrajudicial executions." Use of the latter terms, value-laden as they are with notions of immorality and illegality, would seem to prejudge any debate. An "assassination" carried out in peacetime is commonly defined as the "murder of a private individual or public figure for political purposes," n12 while an "assassination" conducted in times of armed conflict is often defined as the specific targeting of an individual using "treacherous" means. n13 "Extrajudicial execution," meanwhile, is frequently understood to be a term applicable to domestic contexts in which international human rights law is operative as the lex specialis and to refer to "the deliberate killing of suspects in lieu of arrest, in circumstances in which they [do] not pose an immediate threat." n14 As will be shown below, it is far from settled that the pre-formed understandings that accompany those terms should apply to targeting individual terrorists. Thus "targeted killing," a more neutral descriptive term and the term that the Israeli government itself has used to refer to such actions, will be used in [*715] this Article. n15 "Targeted killing," as utilized herein, means the intentional slaying of a specific alleged terrorist or group of alleged terrorists undertaken with explicit governmental approval when they cannot be arrested using reasonable means.TARGETED KILLING FOR SELF-DEFENSE MAKES IT DIFFERENT FROM ASSASSINATIONHunter, 2005 (Thomas, Department of Homeland Security Intelligence Analyst, “Targeted Killing: Self-Defense, Preemption, and the War on Terrorism”, operationalstudie.com, 29 April, p. 6)Thus, we are able to draw a distinct line between assassination and targeted killing. In sort: assassination is a killing conducted against an individual or individuals for purely political or ideological reasons. Targeted killing, in sum, is a killing conducted against an individual or individuals without regard for politics or ideology, but rather exclusively for reasons of state self-defense.





Targeted Killing AffTARGETED KILLING IS NOT ASSASINATION

Reinold, 2011 (Theresa, Researcher, “State Weakness, Irregular Warfare, and the Right to Self-Defence post 9/11, American Journal of International 105.244, p. 277-278).

According to a 1989 memorandum by the Department of the Army's Office of the Judge Advocate General, n253 targeted killings are exempt from the assassination ban laid down in Executive Order 12,333 of 1981: n254

[C]landestine, low visibility or overt use of military force against legitimate targets in time of war, or against similar targets in time of peace where such individuals or groups pose an immediate threat to United States citizens or the national security of the United States, as determined by competent authority, does not constitute assassination or conspiracy to engage in assassination, and would not be prohibited by the proscription in EO 12333 or by international law. n255

Rather, the memorandum continues, the use of force against individuals posing a threat to U.S. national security constitutes a lawful self-defense option in accordance with the UN Charter. The executive order's assassination ban does not apply, the memorandum asserts, if the targeted killing of an individual is necessary to eliminate an imminent threat to vital U.S. security interests, with "necessary" and "imminent" defined flexibly; the "test is one of reasonableness." n256 Unofficially, U.S. officials have justified the drone strikes in Pakistan as "the purest form of self-defense" n257 against groups that have vowed to attack the United States. n258 According to one commentator, the following conditions need to be satisfied for the drone strikes to qualify as acts of self-defense: first, the threat emanating from the terrorists hiding in a failed state would have to be imminent, and second, arresting them would not be a viable option, because it would tip off the targets. The same commentator adds that this test "describes Afghanistan under the Taliban, of course, but it captures (as the Obama campaign correctly recognized) even more accurately Pakistan and its trajectory today, with all the policy unpleasantness that it implies."TARGETED KILLINGS ARE TANTAMOUNT TO EXTRA-JUDICIAL EXECUTIONS

Proulx, 2005 (Vincent-Joel, Doctoral Candidate, If the Hat Fits, Wear It, If the Turban Fits, Run for your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, Hastings Law Review 56.801, 888).

More importantly, the policy of targeted killing generates two unpalatable results under international law. Although the assassination of a suspected terrorist might be executed with precision in certain circumstances, the margin for error and abuse is simply too great to ignore. To carry out a targeted killing when civilian deaths will likely ensue - or when the target has not clearly been identified - is morally irresponsible and in clear violation of the laws of war. n445 In many regards n446 the practice of targeted killing is often an indiscriminate attack by definition. n447 This type of policy frequently engenders the loss of civilian life, or "collateral damage."










Targeted Killing AffASSASINATION IS NOT CLEARLY DEFINED


In order to fully understand the moral permissibility of assassination under a just war tradition, it is important to define assassination. It is also important from a legal perspective, as neither of the executive orders banning assassination provides a definition for the action it seeks to proscribe. n35 Some commentators have argued that this is exactly the point. n36 That is, the executive orders intentionally refrain from defining assassination in order to appear to be doing something in response to political pressure and the Church Committee's recommendation, to discourage Congress from passing specific legislation that would further constrain the executive branch's ability to act, and to further maintain "flexibility in interpreting exactly what had been done." n37 One might argue, then, that the executive orders' bans [*464] on assassination were meant to maintain executive power, not constrain it. n38 Thus, whether intentional or not, the effect of failing to define assassination is that it allows one to distinguish, justify, rationalize, and even redefine one's act as not falling under those actions which are proscribed by E.O. 12,333.

TWO CHARACTERISTICS DEFINE ASSASINATION: INTENTIONALITY AND KILLING


If nothing else is clear about how to define assassination, one aspect of the definition is universally accepted: it involves a killing. Killing, and I would argue, intentionality, are necessary conditions for an act to be an assassination. Moreover, whereas one could imagine morally defensible killings (accidents) and even morally defensible intentional killings (self-defense, killing combatants in wartime), one would find it more difficult to imagine a morally defensible murder. If the act is morally defensible, I suspect most people would not call it murder. But even if we are confident that assassination is an intentional killing, merely defining assassination as a form of intentional killing doesn't get us any closer to understanding what assassination is; that is, why intentional killing and assassination are not coterminous, or what those particular kinds of intentional killing are that E.O. 12,333 seeks to denounce.

ASSASINATION IS AN ACT OF “NAMED KILLING”


Soldiers fight anonymously, as agents for the political communities they defend, and without any "personal' grievances against their adversary. This is part of the veil that soldiers must wear to override the normal human aversion to murder. But naming names lifts the veil, pushing self-defence perilously close to premeditated murder and beyond the pale of permissible warfare. n145 Indeed, in a way, assassination could be called a "named killing" since it names the targeted individual. But Gross is wrong to believe that what makes killing permissible in war is the anonymity of soldiers. Instead, the anonymity of soldiers is merely a common, practically universal side-effect of the historical system of warfare in which the body politic is conscripted to fight their leaders' wars. What makes an enemy combatant a legitimate target of hostility is his reciprocal, justified right and ability to return hostility. n146 In his [*487] response to Gross, Daniel Statman writes: "To kill by name is to kill somebody simply because he is who he is, regardless of any








contingent features he has or actions he committed... . But targeting people in war is not of this kind. It is based on the special role the targets play in the war - more precisely, on the special threat they pose to the other side." n147 Indeed, it is not anonymity that justifies killing in war; it is the ability to say to the other soldier ""It's either you or me.'"



Executive Orders on Targeted KillingJUSTICE THOMAS BELIEVES THE COURTS DO NOT HAVE THE RIGHT TO SECOND GUESS EXECUTIVE DECISIONSMurphy and Radsan, 2009 (Richard and Afsheen John, both are professors of Law, “Due Process and Targeted Killing of Terrorists.” Ueshiva University Cardozo Law Review. 32 (November 2009) p. 4014) But on another view, nothing could be more absurd than courts attempting to conform armed conflict to judicial norms. Justice Thomas has been a vocal proponent for this view. Indeed, he used the 2002 Predator strike cited at the beginning of this Article to mount a reductio ad absurdum attack on his colleagues' efforts in Hamdi to impose due process on the detention of enemy combatants. Dissenting, he contended that the controlling plurality's approach led to the absurd conclusion that the government should give terrorists notice and an opportunity to be heard before firing a missile at them. More broadly, Justice Thomas asserted that the courts have neither the authority nor the competence to second-guess the executive's detention of enemy combatants. Implicit is that courts should not second-guess the killing of enemy combatants either. Responding to Justice Thomas's challenge, we contend that the due process model of Hamdi/Boumediene does not break down when applied to the extreme case of targeted killing. Instead, this model supports adoption of procedures that would increase transparency and accountability for targeted killing while still respecting national security needs.MILITARY NECESSITY REQUIRES A CERTAIN KIND AND DEGREE OF FORCE, THAT ACHIEVES A LEGITIMATE MILITARY PURPOSEMurphy and Radsan, 2009 (Richard and Afsheen John, both are professors of Law, “Due Process and Targeted Killing of Terrorists.” Ueshiva University Cardozo Law Review. 32 (November 2009) p. 417)It is often asserted that a combatant can legally kill opposing combatants provided they have not made plain that they are hors de combat by, for instance, surrendering with the proverbial white flag. Unlike the law enforcement model, this assertion leaves room to kill persons without regard to whether they pose any immediate threat at all - think of bombing soldiers while they sleep in their barracks. Some, however, maintain that this room to kill opposing combatants is not so absolute given a proper understanding of "military necessity," which requires that "the kind and degree of force resorted to must be actually necessary for the achievement of a legitimate military purpose." This limits "senseless slaughter of combatants where there manifestly is no military necessity to do so, for example where a group of defenseless soldiers has not had the occasion to surrender, but could clearly be captured without additional risk to the operating forces." In the archetypical battle zone in which well-matched adversaries fight each other in real time, the choice between these models does not much matter; often, opposing forces have not clearly surrendered or been incapacitated. But, as applied to targeted killing, one might argue that the principle of military necessity blocks killing an isolated enemy combatant who can be captured without risk to his captors or bystanders. On this view, neither the CIA nor the military could kill an unarmed al Qaeda operative who could easily be captured. They could not, for instance, shoot Jose Padilla at O'Hare Airport rather than arrest him. This view of military necessity suggests that apart from other legal and diplomatic concerns, it is more difficult to justify targeted killing in locations the United States or its allies control than elsewhere; it is just easier to capture a terrorist in Chicago or London than in the mountains of Pakistan. Given that executive officials have every incentive to capture al Qaeda members to interrogate them, a limited approach to military necessity - which allows killing only where capture is risky - is presumably consistent with United States policy toward terrorists.

Targeted Killing AffEXECUTIVE ORDER 12333 DOESN’T CONDONE ASSASSINATION BUT IS A PREEMPT TO RESTRIVTIVE LEGISTLATION AND TO PRECLUDE INDIVIDUAL AGENCIES FROM ATTACKING FOREIGN OFFICIALSMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 17)Opponents of a policy of ‘targeted killing’ often claim that such a policy is in direct violation of articles 2.11 and 2.12 of Executive Order 12333 (hereafter EO 12333) prohibiting assassination. These arguments, however, fail to accurately examine the context of the executive order, and once again tend to utilize an improper and inaccurate definition for the term assassination. EO 12333 is the most recent in a series of three executive orders to have included presidential bans on assassinations. The first of the series was Executive Order 11905 issued by President Ford in 1976 in response to congressional criticism of alleged abuses committed by US intelligence agencies. “The true effect of the executive order is neither to restrict in any legally meaningful way the President’s ability to direct measures he determines necessary to national security, nor to create a legal impediment to United States action.”52 The purpose of EO 12333 was to preempt more restrictive congressional legislation, preclude individual agents or agencies from taking unilateral actions against selected foreign officials, and to unequivocally certify that the United States does not condone assassination as an instrument of national policy.

EXECUTIVE ORDERS ARE MORE EFFECTIVE THAN LEGISTLATION IN TIMES OF CRISISMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 21)“The true effect of the executive order is neither to restrict in any meaningful way the President’s ability to direct measures he determines to be necessary to national security.” The advantage of an executive order over congressional legislation banning assassination is its inherent flexibility. Issuing an executive order can usually be accomplish in far less time than enacting legislation, and if a president wishes to rescind or modify the executive order at any time, he has the authority. “Additionally, the President may designate any of these changes as classified if he considers them ‘intelligence activities . . . or intelligence sources and methods,’ effectively preventing them from ever reaching public view.” As revealed in the sections above the executive order banning assassination allows the President a significant amount of flexibility in policy-making given the ambiguity presented by the failure to define assassination. The assassination ban, loose as that ban might be, may also be circumvented through a number of executive actions. The President may request a declaration of war, under which foreign leaders could possibly be classified as combatants and therefore legally targeted.OBAMA CAMPAIGNED ON KILLING OSAMA BIN LADENAnderson, 2009 (Kenneth, member of the Task Force on National Security and Law, Hoover institution. 5/11/09)

It is a slight exaggeration to say that Barack Obama is the first president in American history to have run in part on a political platform of targeted killings—but not much of one. During the campaign, he openly sought to one-up the Republican nominee, Senator John McCain, in his


enthusiasm for the use of targeted strikes in Pakistan against Al-Qaeda figures. “You know,” Obama said in his speech at the Democratic National Convention, “John McCain likes to say that he’ll follow [Osama] bin Laden to the Gates of Hell, but he won’t even go to the cave where he lives.” That he would, as president, follow bin Laden to his cave, with or without the cooperation of the Pakistani government, he made perfectly clear. “If we have actionable intelligence about high-value terrorist targets and President [Pervez] Musharraf won’t act, we will,” he said in another speech. Indeed, although Obama criticized President Bush for being too aggressive in many aspects of counterterrorism, with respect to targeted killings his criticism was the polar opposite. “The Bush administration has not acted aggressively enough to go after Al-Qaeda’s leadership,” he said. “I would be clear that if Pakistan cannot or will not take out Al-Qaeda leadership when we have actionable intelligence about their whereabouts, we will act to protect the American people. There can be no safe haven for Al-Qaeda terrorists who killed thousands of Americans and threaten our homeland today.”


Targeted Killing is A Legitimate Form of Self DefenseCOUNTRIES IN ARMED CONFLICT CAN USE TARGETED KILLING FOR SELF DEFENSEDavid, 2003 ( Steven, Professor of International Relations, “Israel’s Policy of Targeted Killing”, Ethics and International Affairs, 27 September, p. 4)In sum, in the majority of cases during the second intifada, the Israeli policy of targetedkilling has not been tantamount to assassination because Israel is engaged in armed conflict with terrorists, those targeted are often killed by conventional military means, and the targets of the attacks are mostly combatants or are part of the military chain of command. In those cases in which the targeted killings did not fit these criteria, they may indeed be considered assassinations. Nevertheless, the thrust of the Israeli practice of targeted killing is consistent with a country’s right to target specific individuals in the pursuit of self-defense and is thus not a policy of assassination.TARGETED KILLING IS ISRAELS ONLY WAY OF DEFENDING ITSELFAside from revenge and retribution, targeted killing is morally defensible because although it would be preferable to have a negotiated peace, such an outcome has not proved possible so far. It may therefore be the least bad option Israel can mount against terrorism.TARGETED KILLING JUSTIFIED BY SELF DEFENSE WHEN IT INCORPORATES THE USE OF DRONE AIR STRIKES Reinold, 2011 (Theresa, researcher, “State Weakness, Irregular Warfare, and the Right to Self-Defense Post-9/11.” The American Journal of International Law. 105 (April 2011) p. 279)Rather, the memorandum continues, the use of force against individuals posing a threat to U.S. national security constitutes a lawful self-defense option in accordance with the UN Charter. The executive order's assassination ban does not apply, the memorandum asserts, if the targeted killing of an individual is necessary to eliminate an imminent threat to vital U.S. security interests, with "necessary" and "imminent" defined flexibly; the "test is one of reasonableness." Unofficially, U.S. officials have justified the drone strikes in Pakistan as "the purest form of self-defense" against groups that have vowed to attack the United States. According to one commentator, the following conditions need to be satisfied for the drone strikes to qualify as acts of self-defense: first, the threat emanating from the terrorists hiding in a failed state would have to be imminent, and second, arresting them would not be a viable option, because it would tip off the targets. The same commentator adds that this test "describes Afghanistan under the Taliban, of course, but it captures (as the Obama campaign correctly recognized) even more accurately Pakistan and its trajectory today, with all the policy unpleasantness that it implies."THE DEATH OF NONCOMBATANTS DUE TO THE LAWFUL ATTACK OF A MILITARY OBJECTIVE ISN’T CATEGORIZED UNDER ASSASSINATIONParks, 1989 (W. Hays, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, “Memorandum on Executive Order 12333 and Assassination.” Department of the Army: Office of the Judge Advocate General of the Army. (November 2, 1989) www.hks.harvard.edu/cchrp/Use%20of%20Force/.../Parks_final.pdf accessed July 10, 2011). Likewise, the death of noncombatants ancillary to the lawful attack of a military objective is neither assassination nor otherwise unlawful. Civilians and other noncombatants who are within or in close proximity to a military objective assume a certain risk through their presence in or proximity to such targets; this is not something about which an attacking military force normally would have knowledge or over which it would have control. The scope of assassination in the U.S. military was first outlined in U.S. Army General Orders No. 100 (1863). Paragraph 148 states: Assassination. The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage…. This provision, consistent with the earlier writings of Hugo Grotius, was continued in U.S. Army Field


Targeted Killing AffManual 27-10 (1956), which provides (paragraph 31): [Article 23(b), Annex to Hague Convention IV, 1907] is construed as prohibiting assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy “dead or alive.” The foregoing has endeavored to define assassination in the sense of what the term normally encompasses, as well as those lawful acts carried out by military forces in time of war that do not constitute assassination. The following is a discussion of assassination in the context of specific levels of conflict.PRESIDENT REAGAN STATES THE SELF-DEFENSE ISN’T JUST A RIGHT BUT THAT IT IS A DUTYMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 24) President Reagan, in his address to the nation, issued just as U.S. combat aircraft had reentered international airspace, stated: When our citizens are abused or attacked anywhere in the world on the direct orders of a hostile regime, we will respond so long as I'm in this Oval Office. Self-defense is not only our right, it is our duty. It is the purpose behind the mission undertaken tonight, a mission fully consistent with Article 51 of the United Nations Charter. We believe that this preemptive action against his terrorist installations will not only diminish Colonel Qadhafi's capacity to export terror, it will provide him with incentives and reasons to alter his criminal behavior. I have no illusion that tonight's action will ring down the curtain on Qadhafi's reign of terror. But this mission, violent though it was, can bring closer a safer and more secure world for decent men and women.

AS THE LEADER OF LYBIA, COLONEL QADDAFI IS RESPONSIBLE FOR LYBIAN ACTIONS THUS MAKING HIM A LEGITIMATE TARGETMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 25)Second, even if the United States had specifically targeted Colonel Qaddafi, which has been denied by multiple sources including Colonel Parks who provided legal counsel during the planning phase of the operation, the action would not constitute assassination according to the provided definition. By invoking Article 51, the U.S. should be assessed under wartime rather than peacetime conditions under which Colonel Qaddafi clearly qualifies as a legitimate target. As the military commander of the Libyan Armed Forces and intelligence services and therefore; is personally responsible for Libya’s policy of training, assisting, and utilizing terrorists in attacks on U.S. citizens, diplomats, troops, and facilities. His position as head of state provided him no legal immunity from being attacked when present at a proper military target.TARGETED KlLLING DOES NOT VIOLATE SOVERIEGNTY; VITAL TO SELF-DEFENSE

Reinold, 2011 (Theresa, Researcher, “State Weakness, Irregular Warfare, and the Right to Self-Defence post 9/11, American Journal of International 105.244, p. 285).

One of the hallmarks of sovereign statehood is the state's ability to provide crucial public goods such as effective territorial control. In this article I have explored under what circumstances the failure to provide that good may be sanctioned militarily. States increasingly invoke the notion of sovereignty as responsibility in justifying military operations against irregular forces. The harboring state is taken to

Targeted Killing Affhave certain duties not only toward its own people, but also toward the populations of neighboring states. The failure to discharge these obligations activates the injured state's right to self-defense. But can a state thus be held accountable for activities that it simply lacks the capacity to prevent? After a review of post-9/11 state practice, I am inclined to answer that question in the affirmative, even though uncertainty remains as to the exact scope of the right to self-defense. At the outset, I identified three issues as requiring further clarification: The threshold requirement, the attribution standard, and the (re-)interpretation of the principles of necessity and proportionality. The instances of state practice reviewed in this article have only partially reduced legal uncertainty concerning these issues. The least controversial of the three issues is the first, concerning the threshold. This condition has been softened to enable states to protect their people more effectively against low-level irregular warfare, thus contributing further, in turn, to the consolidation of the accumulation-of-events norm. Recent ICJ case law bears out this assumption; witness the Court's judgments in Armed Activities on the Territory of the Congo and in Oil Platforms, where it did not want to rule out "the possibility that the mining of a single military vessel might be sufficient to bring into play the 'inherent right of self-defence'."TARGETED KILLINGS ARE AN ACT OF NECESSITY AGAINST IRREGULAR FORCES, I.E., TERRORIST ORGANIZATIONS

Reinold, 2011 (Theresa, Researcher, “State Weakness, Irregular Warfare, and the Right to Self-Defence post 9/11, American Journal of International 105.244, p. 285-286).

By contrast, the principle of necessity has been interpreted in flexible, contextualized terms by states defending themselves against irregular forces. Half a century ago Myres McDougal suggested (as part of his "general community perspectives") that the necessity of the defensive use of force should be determined by reference to various case-specific factors, including the participants, objectives, strategies, and outcomes. n296 The first two of these factors suggest that the characteristics, including the objectives, of both the state harboring the militants and the militants themselves should play an important role in determining the necessity of a military [*286] response. Put differently, more intrusive and far-reaching measures will likely be necessary against a harboring state governed by irresponsible rulers who support jihadists as part of an overall aggressive foreign policy and who refuse to cooperate with the international community (the unwillingness scenario). A more limited response would be appropriate, however, where the harboring state does aspire to standards of responsible governance but simply lacks the means to prevent irregular warfare (the inability scenario). Equally relevant for judging the necessity of self-defense are the strategies that the actors use in each particular situation, along with the potential outcomes produced by the defending state's failure to act. Thus, if the failure to nip a dangerous militant movement in the bud could give rise to potentially devastating consequences (consider the possibility of nuclear terrorism, for instance), the immediacy requirement would be flexibly adjusted to include anticipatory action against threats that have not yet fully materialized but that would, if allowed to materialize, have disastrous consequences for the international community as a whole. Indeed, once terrorists have managed to lay their hands on nuclear weapons, each state will be responsible for protecting its own citizens against terrorists' use of those weapons and will need to exercise that responsibility by acting preventively, if necessary, against the terrorists and their state sponsors alike.

TARGETED KILLINGS ARE AN ESSENTIAL ELEMENT OF CONTEMPORARY SECURITY ENVIRONMENTS


Targeted Killing AffDershowitz, 2008 (Alan, Professor of Law @ Harvard, “VISIBILITY, ACCOUNTABILITY AND DISCOURSE AS ESSENTIAL TO DEMOCRACY: THE UNDERLYING THEME OF ALAN DERSHOWITZ'S WRITING AND TEACHING,” Albany Law Review 71.731, p. 733)

The democratic world is experiencing a fundamental shift in its approach to controlling harmful conduct. We are moving away from our traditional reliance on deterrent and reactive approaches and toward more preventive and proactive approaches. This shift has enormous implications for civil liberties, human rights, criminal justice, national security, foreign policy, and international law - implications that are not being sufficiently considered. It is a conceptual shift in emphasis from a theory of deterrence to a theory of prevention, a shift that carries enormous implications for the actions a society may take to control dangerous human behavior, ranging from targeted killings of terrorists, to preemptive attacks against nuclear and other weapons of mass destruction, to preventive warfare, to proactive crime prevention techniques (stings, informers, wiretaps), to psychiatric or chemical methods of preventing sexual predation, to racial, ethnic, or other forms of profiling, to inoculation or quarantine for infectious diseases (whether transmitted "naturally" or by "weaponization"), to prior restraints on dangerous or offensive speech, to the use of torture (or other extraordinary measures) as a means of gathering intelligence deemed necessary to prevent imminent acts of terrorismDEADLY FORCE SHOULD NOT BE THE NORM BUT IS PERMISSABLEKhor, 2011, (Martin, The nation (Thailand), P# 1, 5/11/11)

The UN High Commissioner for Human Rights Navi Pillay called for light to be shed on the killing, stressing that all counter-terrorism operations must respect international law. Last Friday, a joint statement was issued by Christof Heyns, UN special rapporteur on extrajudicial, summary or arbitrary executions, and Martin Scheinin, special rapporteur on protecting human rights while countering terrorism. Both report to the UN Human Rights Council. They said that in certain exceptional cases, deadly force may be used in operations against terrorists. "However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially-decided punishment," they added.

LIGITIMACY OF SELF DEFENSEAaron, 2009 (Lim, Defense analyst and completed a Master’s thesis at Otago University on military strategy and foreign affairs. Israel needs to Turn War into Peace, The Dominion Post. 1/16/09, P# 1)

Condemnation of the Israeli offensive is mainly based around the international legal concept of a proportionate military response. Article 51 of the United Nations Charter grants nation states the inherent right to individual or collective self-defense if an armed attack occurs against a state. The laws of war also mandate that military actions be proportionate to the threats at hand. Traditional customary rules on self-defense derive from a diplomatic incident which has become known as the Caroline doctrine of 1842. The Caroline case established that there had to exist "a necessity of self-defense, and that any action taken must be proportional", since the act justified by the necessity of self-defence must be limited by that necessity, and kept within it.

KILLING TARGETS INSTEAD OF ARRESTING THEM IS SAFER FOR THE WORLDDershowitz, 2011 (Alan, Professor of Law, ‘Targeted Killing’ of bin Laden Just, Legal, Desert Local News, 3 May, desertlocalnews.com)

The operation directed against bin Laden may have been designed, in part, to have preserved the theoretical option of “arrest,” though the likelihood of a live capture was virtually impossible under the

Targeted Killing Affcircumstances. Indeed it is likely that bin Laden’s death was deemed preferential to his capture and trial, because the latter would have raised the probability that al-Qaida would take hostages and try to exchange them for bin Laden. The operation directed against bin Laden may have been designed, in part, to have preserved the theoretical option of “arrest,” though the likelihood of a live capture was virtually impossible under the circumstances. Indeed it is likely that bin Laden’s death was deemed preferential to his capture and trial, because the latter would have raised the probability that al-Qaida would take hostages and try to exchange them for bin Laden


Targeted Killing Complies With Just War Theory/ International Laws

HUMAN RIGHTS CAN SHAPE AND DICTATE TARGETED KILLINGS OPERATIONS

Schmitt 2009 (Michael, Dean and Professor of International Law George C. Marshall European Center for Security Studies, Targeted Killing in International Law, American Journal of International Law, (October 2009) P. 814)In Targeted Killing in International Law, Nils Melzer, one of the talented team of international lawyers in the ICRC's Legal Division, has taken on the herculean task of making sense of the normative architecture governing targeted killing operations. For Melzer's purposes, the term denotes "the use of lethal force attributable to a subject of international law with the intent, premeditation and deliberation to kill individually selected persons who are not in the physical custody of those targeting them" (p. 5). Employing this definition, his ensuing analysis distinguishes between killings taking place in a "law enforcement paradigm" (chapters to 5 to 9) and those occurring in a "hostilities paradigm" (chapters 10 to 14). In this regard, it is important to note that his paradigms track neither the typical peacetime--armed conflict dichotomy nor the classic distinction between humanitarian law and human rights. This approach is both perceptive and useful, for law enforcement plays a role in armed conflict, particularly during occupation or noninternational armed conflict. Further, and despite the lex specialis nature of IHL, human rights and other norms may govern, or at least shape, targeted killing operations during armed conflicts.

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JUS AD BELLUM EXTENDS TO DEFENCE AGAINST TERRORISTS Schmitt 2009 (Michael, Dean and Professor of International Law George C. Marshall European Center for Security Studies, Targeted Killing in International Law, American Journal of International Law, (October 2009) P. 814-815)After his survey of state practice, Melzer provides an overview of the contemporary legal doctrine governing targeted killings--primarily the [*815] jus ad bellum, IHL, and human rights law (the latter two are dealt with further, and much more comprehensively, in subsequent chapters). His treatment of the law governing the use of force by one state to target terrorists in another brushes over a question at the heart of the ongoing controversy over U.S. strikes into Pakistan: whether or not the operations can be mounted at all. The jus ad bellum does not, as some scholars assert, regulate relations only between states. Many respected academics, along with many states (including the United States), assert that the law of self-defense, reflected in Article 51 of the UN Charter, extends to defensive action in the face of armed attacks by nonstate actors. The UN Security Council also appeared to have adopted that stance in various post-9/11 resolutions, particularly 1368 and 1373, as did NATO when activating the North Atlantic Treaty's Article V collective defense provision following the attacks. Many states likewise offered the United States military and other support in collective defense pursuant to Article 51. In sum, although the International Court of Justice muddied the waters with its 2004 Wall advisory opinion and 2005 Armed Activities judgment, it is certainly colorable that the jus ad bellum extends to defense against terrorists.TARGETED KILLING IS A PROPORTIONAL REACTION TO ATTACKS AND THREATSFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P. 743)

Targeted Killing AffTargeted killing can be proportional and the vast majority of U.S. and Israeli targeted killings to date may be considered as having been proportional. n190 By design, most targeted killing operations use only enough force to accomplish the task. n191 "Targeted killing does not employ large numbers of troops, bombers, artillery, or other means that can leave in their wake far more destruction than they prevent." n192 That is not to say targeted killing actions can never be or have never been disproportionate. By almost any account, the July 22, 2002 targeted killing of senior Hamas leader Salah Shehada, in which an Israeli F-16 dropped a 2,000-pound bomb on an apartment building in a crowded neighborhood of Gaza City, obliterating it and most of those inside, was disproportionate. n193 However, since most uses of targeted killing have comported with the proportionality norm, there is no reason to presume that future uses of the tactic will not do the same.ACTIONS ARE TAKEN TO MAKE SURE TARGETED KILLING IS PROPORTIONAL TO THE COLLATERAL DAMAGE CAUSEDFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P. 743-744) Moreover, while behavior may provide evidence of norm coherence and adherence, so may discourse. As such, it should be [*744] noted that both U.S. and Israeli security forces are trained to examine the proportionality of the hostile actions that they consider and that if such attacks are to be carried out, it is necessary that they believe the targeted killing actions are proportional. n194 Accordingly, Israel acknowledges that targeted killing "is not a routine, but an exceptional method whose goal is to save human lives in the absence of any other alternative." n195 The Principles of Military Ethics of Fighting Terror, the IDF's guidelines for counter-terrorism activities, includes a proportionality provision, which states that "activities against terror are right only if" they are "carried out in a manner that takes into account the relationship between [their] contribution to the defense of citizens ... and the collateral damage [they cause]."

TARGETED KILLING COMPLIES WITH JUST WAR THEORY Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P.746) A norm permitting the use of targeted killing as a counter-terrorism tactic, it appears, can logically cohere, even to a high degree, with the just war theory norms of proportionality and distinction.

ASSASSINATION HAS BEEN USED IN THE PAST TO MINIMIZE HARMS TO CIVILLIANSFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P.747) Because a targeted killing norm can be logically compatible with the related, established norm against assassination, its chances of success are increased. The international norm prohibiting assassination - the killing of private individuals or public figures for political purposes - developed in the early-to mid-1600s. n216 Prior to that time, international assassination was a commonly accepted and frequently used tool of foreign policy. n217 Assassination was regularly employed through the Middle Ages and into the Renaissance. n218 For example, "the Republic of Venice, from 1415 to 1525, planned or attempted about two hundred assassinations for purposes of its foreign policy." n219 Assassination was also prevalent in the conflicts surrounding the Reformation. During that period, Elizabeth I of England was subject to at least twenty assassination attempts and, as part of the Counter-Reformation, Philip II of Spain authorized and funded the assassination of Holland's William of Orange - the occurrence of which led Pope Gregory XIII to proclaim a day of religious observance in











Targeted Killing Affcelebration. n220 Even Thomas More extolled the virtues of assassination, viewing it as a noble means of sparing citizens the hardships of wars for which their leaders were responsible.TARGETED KILLING IS IN ACCORDANCE WITH THE NORM AGAINST ASSASSINATIONFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P.748) As targeted killing appears unlikely to give rise to the concerns associated with assassination and likely to help maintain rather than disrupt social and political stability in the face of terrorism, it seems that a norm permitting targeted killing as a counter-terrorism tactic can logically cohere with the norm against assassination.THE UNITED NATIONS GRANT THE RIGHT TO SELF-DEFENSEHunter, 2005 (Thomas, Department of Homeland Security Intelligence Analyst, “Targeted Killing: Self-Defense, Preemption, and the War on Terrorism”, operationalstudie.com, April 29, p. 3)The right of a nation to take action to defend itself is spelled out in Article 51 of the United Nations Charter, which states: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Many nations have cited Article 51 as their primary right to undertake unilateral military actions, citing the requirement of self-defense, with or without UN approval. This has, in some cases, worked out well for the acting state (resulting in little to no argument in the UN), and in some cases, as with the Israeli attack on Iraq, with international condemnation.TARGETED KILLING MUST COMPLY TO ARTICLE 1 IN SITUATIONS DEALING WITH CIVILLIANSGeneral Assembly, 1966 (United Nations. International Covenant on Civil and Political Rights. , 16 December 1966. Web. 10 Jul 2011. http://www2.ohchr.org/english/law/ccpr.htm).A Democratic administration would reverse the course of decades of [the] U.S. views on the territorial application of the International Covenant on Civil and Political Rights and treat it as applying extraterritorially--thus giving at least an arguable international human rights purchase for example, in the case of the use of force by the United States abroad short of war, for example, in abductions or assassinations. Article 1 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. MILITARY NECESSITY REQUIRES A CERTAIN KIND AND DEGREE OF FORCE, THAT ACHIEVES A LEGITIMATE MILITARY PURPOSEMurphy and Radsan, 2009 (Richard and Afsheen John, both are professors of Law, “Due Process and Targeted Killing of Terrorists.” Ueshiva University Cardozo Law Review. 32 (November 2009) p. 417)

http://www2.ohchr.org/english/law/ccpr.htm


Targeted Killing AffIt is often asserted that a combatant can legally kill opposing combatants provided they have not made plain that they are hors de combat by, for instance, surrendering with the proverbial white flag. Unlike the law enforcement model, this assertion leaves room to kill persons without regard to whether they pose any immediate threat at all - think of bombing soldiers while they sleep in their barracks. Some, however, maintain that this room to kill opposing combatants is not so absolute given a proper understanding of "military necessity," which requires that "the kind and degree of force resorted to must be actually necessary for the achievement of a legitimate military purpose." This limits "senseless slaughter of combatants where there manifestly is no military necessity to do so, for example where a group of defenseless soldiers has not had the occasion to surrender, but could clearly be captured without additional risk to the operating forces." In the archetypical battle zone in which well-matched adversaries fight each other in real time, the choice between these models does not much matter; often, opposing forces have not clearly surrendered or been incapacitated. But, as applied to targeted killing, one might argue that the principle of military necessity blocks killing an isolated enemy combatant who can be captured without risk to his captors or bystanders. On this view, neither the CIA nor the military could kill an unarmed al Qaeda operative who could easily be captured. They could not, for instance, shoot Jose Padilla at O'Hare Airport rather than arrest him. This view of military necessity suggests that apart from other legal and diplomatic concerns, it is more difficult to justify targeted killing in locations the United States or its allies control than elsewhere; it is just easier to capture a terrorist in Chicago or London than in the mountains of Pakistan. Given that executive officials have every incentive to capture al Qaeda members to interrogate them, a limited approach to military necessity - which allows killing only where capture is risky - is presumably consistent with United States policy toward terrorists.INTERNATIONAL HUMANITARIAN LAW RESTRICTS THE KILLING OF A PERSON THAT IS NOT IN CUSTODY UNLESS IT IS TO PREVENT FROM POSING A THREAT OF DEATH OR SERIOUS INJURY TO OTHERS.Murphy and Radsan, 2009 (Richard and Afsheen John, both are professors of Law, “Due Process and Targeted Killing of Terrorists.” Ueshiva University Cardozo Law Review. 32 (November 2009) p. 408-409)From the technical stance of the law, much of the controversy over targeted killing stems from the fact that it does not fit comfortably into either of two models that generally control the state's use of deadly force: human rights law and international humanitarian law (IHL). The human rights model controls law enforcement operations generally, and it permits the state to kill a person not in custody only if necessary to prevent him from posing a threat of death or serious injury to others. IHL is that part of the laws of war that enforces minimum standards of humane treatment of individuals. As part of the lex specialis of war, IHL displaces the human rights model during armed conflicts, granting the state broad authority to kill opposing combatants as well as civilians who are directly taking part in hostilities. Under this two-model dichotomy, extra-judicial, targeted killing of a person who is not an imminent threat can be legal only as permitted under IHL. However, conceding that IHL - as part of the laws of war - can apply to targeted killing might seem to grant the executive too much power to categorize suspected terrorists as combatants and then kill them off without a shred of process.

UNDER ARTICLE 51 THE US HAS THE RIGHT OF SELF-DEFENSE IN WHICH IT CAN USE MILITARY POWERSMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram.

Targeted Killing Aff(May 25, 2006) p. 21-22)The President might invoke the United States’ rights under Article 51 of the United Nation’s Charter, the right of self-defense, which authorizes the state’s use of force equivalent to a declaration of war.71 According to Colonel Parks, acting consistent with the Charter of the United Nations, a decision by the President to employ clandestine, low visibility or overt military force would not constitute assassination if the U.S. military forces were employed against the combatant forces of another nation, a guerrilla force, or a terrorist or other organization whose actions pose a threat to the security of the United States.

TARGETED KILLING IS CONSISTANT WITH STATE’S RIGHT TO SELF-DEFENSEMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 23)Reporting the raid to the United Nations Security Council pursuant to Article 51 of the United Nation’s Charter, the United Stated argued the attack was an act of self-defense in response to “an ongoing pattern of attacks by the government of Libya.”78 Article 51, which will be covered in greater detail in subsequent chapters, exhibits the United Nations’ recognition of a state’s inherent right to self-defense. The United States generally recognizes three forms of self-defense: “(a) Against an actual use of force, or hostile act. (b) Preemptive self-defense against an imminent use of force. (c) Self-defense against a continuing threat.”

MILITARY NECESSITY REQUIRES A CERTAIN KIND AND DEGREE OF FORCE, THAT ACHIEVES A LEGITIMATE MILITARY PURPOSEMurphy and Radsan, 2009 (Richard and Afsheen John, both are professors of Law, “Due Process and Targeted Killing of Terrorists.” Ueshiva University Cardozo Law Review. 32 (November 2009) p. 417)It is often asserted that a combatant can legally kill opposing combatants provided they have not made plain that they are hors de combat by, for instance, surrendering with the proverbial white flag. Unlike the law enforcement model, this assertion leaves room to kill persons without regard to whether they pose any immediate threat at all - think of bombing soldiers while they sleep in their barracks. Some, however, maintain that this room to kill opposing combatants is not so absolute given a proper understanding of "military necessity," which requires that "the kind and degree of force resorted to must be actually necessary for the achievement of a legitimate military purpose." This limits "senseless slaughter of combatants where there manifestly is no military necessity to do so, for example where a group of defenseless soldiers has not had the occasion to surrender, but could clearly be captured without additional risk to the operating forces." In the archetypical battle zone in which well-matched adversaries fight each other in real time, the choice between these models does not much matter; often, opposing forces have not clearly surrendered or been incapacitated. But, as applied to targeted killing, one might argue that the principle of military necessity blocks killing an isolated enemy combatant who can be captured without risk to his captors or bystanders. On this view, neither the CIA nor the military could kill an unarmed al Qaeda operative who could easily be captured. They could not, for instance, shoot Jose Padilla at O'Hare Airport rather than arrest him. This view of military necessity suggests that apart from other

Targeted Killing Afflegal and diplomatic concerns, it is more difficult to justify targeted killing in locations the United States or its allies control than elsewhere; it is just easier to capture a terrorist in Chicago or London than in the mountains of Pakistan. Given that executive officials have every incentive to capture al Qaeda members to interrogate them, a limited approach to military necessity - which allows killing only where capture is risky - is presumably consistent with United States policy toward terrorists.

PRESIDENT BUSH’S REASONING FOR ATTACKING AFGHANISTAN, AND BLAMING OSAMA BIN LADENMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 8)In his address to the nation the evening of 9/11 President Bush clearly stated “we will make no distinction between the terrorists who committed these acts and those who harbor them.”24 With a preponderance of evidence implicating Osama bin Laden and al-Qaeda as responsible for the terrorist attacks of 9/11, the refusal of the Taliban, the dominant political regime in control of Afghanistan, to turn bin Laden over to US authorities provided the pretext for the initiation of Operation Enduring Freedom. Invoking Article 51 of the United Nations Charter, a state’s inherent right to self defense, the United States took action against the Taliban and bin Laden applying the interpretation that this right to self defense “includes the right to use force to destroy terrorist bases from which further attacks may be planned organized, supported, or launched, wherever located, if the state in which they are located does not take effective measures to eliminate them as required to do by international law.”

THE NATIONAL SECURITY STRATEGY WAS JUSTIFICATION FOR MOVING INTO IRAQMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 9-10)The doctrine is clearly predicated upon the concept of American hegemony, and provides a clear warning to Saddam Hussein and Iraq. In fact, many analysts claim the strategy exists as a justification for a pre-emptive war aimed at the removal of Saddam Hussein from power. Iraq aside, the National Security Strategy, or Bush doctrine, establishes the precedent and policy directive for the conduct of a policy of ‘targeted killing’ of al-Qaeda and other terrorist leadership.THE MORALITY OF TARGETED KILLING CAN ONLY BE DECIDED CASE-BY-CASE

Proulx, 2005 (Vincent-Joel, Doctoral Candidate, If the Hat Fits, Wear It, If the Turban Fits, Run for your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, Hastings Law Review 56.801, 878-879).

Belonging primarily to the armed conflict paradigm, n384 the policy of targeted killing engenders a myriad of moral dilemmas in the war on [*879] terror. The focal point is easily decipherable: to what extent is the targeted killing of suspected terrorists justifiable under international law? Although an analysis of the legality of this practice will ineluctably require the international community to engage in profound moral introspection, targeted killing, like indefinite detention, does not exist in a legal vacuum. n385 In fact, international law is sufficiently defined and circumscribed to condemn such a policy. The primary reason behind the illegality of such practice




lies in the very purpose underlying the laws of war and international humanitarian law: the protection of innocent civilians. n386 Furthermore, the distinction between combatants and non-combatants, n387 including unprivileged belligerents, will undoubtedly inform the analysis.

TARGETED KILLINGS DO NOT VIOLATE INTERNATIONAL BANS ON KILLING OR WOUNDING “TREACHOROUSLY”


As a general rule, the Geneva Conventions do not apply to targeted killing, as they remain silent on who constitutes a lawful target. n412 Thus, to examine targeted killing of individuals who are not in the hands of the enemy, we must rely on Article 23 of the Hague Regulations n413 and the Additional Protocol. Article 23(b) of the Hague Regulations provides that it is "especially forbidden" to "kill or wound treacherously." In fact, the "term "treacherously' means that an act is carried out through a breach of confidence", n414 thereby militating in favor of a sharp distinction between combatants and non-combatants. n415 We could envision a [*883] situation where members of a mission purporting to "take out" a target would resort to deceitful tactics and violate the laws of war to achieve the objective. For instance, if the attackers were to infiltrate a community, wearing civilian clothing, in order to remove the target, this would clearly contravene to the Hague Regulations. In canvassing these provisions, we automatically see a connection with Article 37 of the Additional Protocol, n416 which prohibits killing through perfidy or through the usurpation of the opponent's confidence. However, these arguments are far from dispositive, as aerial attacks on individuals do not, per se, involve the use of deceitful tactics.

TARGETED KILLINGS MORAL STATUS IS CONDITIONALLY VARIABLE


The final legal restraint is found at article 51(5)(b) of the Additional Protocol n425 and brings us to the legality of targeting unprivileged [*885] combatants, n426 namely individuals who do not enjoy the benefits of POW status. This provision prohibits an attack that may be expected to cause incidental loss of civilian life or injury to civilians and which would be excessive in relation to the concrete and direct military advantage anticipated. n427 When it ratified the Additional Protocol, the U.K. specified its interpretation of this text, stating that the commander in charge, with the knowledge he had at the time of the attack, has the authority to make the decision on targeted killing. n428 According to this position, we should not benefit from the hindsight of the judge in applying the inherent standard of excessiveness. Rather the ultimate determination is made on a moral basis. This scheme inherently entails a wide margin of appreciation and discretion for the state conducting military operations aiming to eliminate terrorists, especially vis-a-vis the question of proportionality. n429 I do not purport to review this standard but do contend that it should be addressed on a case-by-case basis, as different circumstances attract different degrees of morality

THE EUROPEAN COURT AUTHORIZES TARGETED KILLING

Proulx, 2005 (Vincent-Joel, Doctoral Candidate, If the Hat Fits, Wear It, If the Turban Fits, Run for your Life: Reflections on the Indefinite Detention and Targeted Killing of Suspected Terrorists, Hastings Law Review 56.801, 892).














It is interesting to note that, the European Court of Human Rights has developed a legal test in assessing the legality of targeting suspected terrorists. In laying out the parameters for using lethal force against terrorists, the Court emphasized three major requirements: i) there must be a very strict and compelling test of necessity; ii) there must be proportionality between the targeting state's response and the threat; and iii) the targeting state must also take into account alternatives to the use of lethal force. n466 It follows that symmetry n467 is not required but the response should nonetheless be proportionate to the original attack. This determination is hard to make in the abstract and will undoubtedly be addressed on a case-by-case basis. However, it would appear that, given the violations of due process and the seriousness of the consequences of such tactics, namely death of possible innocent civilians or unnecessary suffering, targeted killing does not meet the proportionality threshold. In sum, the margin of error is too high and endorsement of such a policy would undermine the inherent purpose of the laws of war, namely protection of civilian life.

TARGETED KILLING CAN BE LAWFULSolis, 2010 (Gary D, Adjunct Professor of Law at the Georgetown University Law Center. Targeted Killing and The Law of Armed Conflict. Oxford university, Oxford university Press, P# 1)

“Targeted killing” is a term heard in news reports and military conversations, yet few individuals, including, one suspects, CIA agents and judge advocates, could describe what is meant by the term, or detail the law of war issues it raises. Given the U.S. shift toward employing targeted killing it is a subject that bears discussion. This paper posits that the targeted killing of un-uniformed non-state enemy civilian terrorist leaders and their civilian weapons specialists is lawful. Like combatants who conform to the law of armed conflict, civilian terrorists should be considered lawful targets whenever and wherever they are positively identified. Their decision to not comply with customary law of war – to not have a fixed distinctive sign recognizable at a distance or to carry arms openly while engaged in military deployments – should not shield them from the consequences of their combatant activities.




Targeted Killing and War TimeASSASINATION/TARGETED KILLINGS ARE NOT MORALLY PERMISSIBLE IN PEACETIME


It may seem obvious after the analysis of just war theory that at no point when a country is at peace is it permissible to engage in assassination. This is because when a country is at peace, the principles of jus in bello - which permit combatants to kill other combatants - do not apply. Simply put, when the United States is not at war, who are its enemy combatants, its legitimate targets of hostility? During peace, enemy combatants do not exist, therefore, there is no legitimate target of war-like hostility. Moreover, the appropriate model when a state is not at war is the law-enforcement model, which places a heightened value on life, liberty, and due process protections, including the presumption of innocence, procedural safeguards, and fair trials. n136 Assassination is an irreversible act because it leads to the death of an individual, and under the law-enforcement model, life, if it can be taken at all, cannot be taken without due process of law. n137 There are likely those who would argue that the targets of U.S. assassination are the worst of the worst - war criminals, dictators, drug lords, crime bosses, terrorists - but as "guilty" as the assassin or the one authorizing the assassination believes these individuals to be, in the United States, in times of peace, we operate under the presumption of innocence. No one, no matter how bad, is guilty of any crime until that is proven beyond a reasonable doubt. Indeed, in times of peace, when the assassinated has not been afforded the appropriate process to determine guilt or innocence, the assassination amounts to what is effectively an "extra-judicial execution."

IMMANENT THREATS JUSTIFY PEACETIME ASSASINATIONS/TARGETED KILLINGS


Certainly, even during times of peace, there are moments when it is permissible for law enforcement officers to use lethal force because apprehension is infeasible and it is otherwise immediately necessary to protect themselves or innocent bystanders. n139 But in this rare situation, it would be hard to imagine an instance where what occurred even amounted to an assassination. An assassination must be targeted at a prominent individual qua his or her prominence. It is as if in killing the individual, the assassin is killing the [*485] person insofar as that person is prominent, has a particular title, or has a particular amount of influence. In the circumstance in which the targeted individual is killed out of self-defense (or the defense of others), that individual is targeted not for his or her prominence, but instead is targeted insofar as that individual is uniquely capable in that instant of bringing about the death of law enforcement officers or innocent bystanders. This is not an assassination. I will concede, however, that such an act - killing an individual both because of his prominence and because of his unique ability in a given moment to kill law-enforcement officers or innocent bystanders without the possibility of criminal apprehension - if possible, n140 would be a permissible assassination, even in peacetime. But I believe this to be the only exception.

MILITARY LEADERS ARE LEGITIMATE WAR-TIME ASSASINATION TARGETS







Military leaders - and by this I mostly mean generals - are perhaps the most legitimate targets of assassination under just war theory. This is because, quite simply, they are viewed as combatants and therefore the legitimate target of hostility. After all, they are considered combatants under international law: they wear a uniform designating that they have the right to kill and be killed, they bear their arms openly, and they (hopefully, presumably) comply with the norms of war. n170 But we must recall that just war theory is [*491] not concerned with these formalities, but rather whether the particular object of hostility is a legitimate target due to his reciprocal lethality at the moment hostilities are directed at him. n171 While I do believe, for the most part, that military leaders are legitimate assassination targets, there are constraints on when they can be permissively targeted. In essence, they can only be targeted when they are wearing the hat of a general - on the job, performing their duties to lead troops in killing the enemy. It is only in this sense that their lethality is sufficient to make them a combatant and therefore an appropriate target of hostility. As we have seen, assassination can take many forms and it is not conceptually limited to particular times or places. Assassination could occur by poisoning at the dinner table with family, a car bomb on the way to work, or via sniper rifle while leading troops into battle. Without going into all of the possible scenarios, it seems self-evident to me that the first is clearly impermissible because it is directed at the individual insofar at that individual is a person, a father or mother, husband or wife who must eat to live - essentially in the individual's role as a civilian. To be justified, as I believe the final example clearly is, the targeting must be directed at the individual qua their role as a combatant. n172 The second example is the most difficult, and the permissibility of the action will depend greatly on whether others are present in the car and how certain one can be that the general is on his or her way to work





Targeted killing Does Not Undermine Due Process


Targeted Killing Breaks Apart Terrorist Organizations

TARGETED KILLING MAY CREATE DISRUPTIONS IN TERRORIST ORGANIZATIONSFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P.748) A norm permitting the use of targeted killing for counter-terrorism purposes can be logically compatible with the norm against assassination. Targeted killing, like the assassination taboo, seeks to maintain rather than disrupt political order. It is employed against individuals attempting to create social and political chaos in a manner designed to minimize, as the previous section argued, societal disruption. In addition, given that by definition terrorists do not conform to international targeting rules and norms, it would seem to be an overstatement to suggest that targeted killing could cause increased disorder by placing political actors at additional risk of attack, as international assassination might. Further, because targeted killing as a counter-terrorism tactic is only likely to be employed against non-State actors, n226 in contrast with assassination, it is unlikely to create a tit-for-tat cycle involving States that could lead to systemic political disorder and it does not implicate the political-actor-as-State-agent concept.TERRORISTS ACTS DECLINE DUE TO TARGETED KILLING

Byman, 2006 (Daniel, Director of the Center for Peace and Security Studies and of the Security Studies Program at Georgetown University's School of Foreign Service and a nonresident Senior Fellow at the Brookings Institution's Saban Center for Middle East Policy Foreign Affairs. “Do Targeted Killings Work?” Foreign Affairs. Vol. 85 Issue 2(Mar/Apr 2006) p95-111.)

In addition to boosting Israeli morale, the policy has helped in more concrete ways. The National Memorial Institute for the Prevention of Terrorism (MIPT) reports that in 2005, only 21 Israeli civilians died at the hands of Hamas--down from 67 in 2004, 45 in 2003, 185 in 2002, and 75 in 2001. Figures for deaths of Israeli soldiers show a comparable decline. This drop-off occurred partly because Israel's targeted killings have shattered Palestinian terrorist groups and made it difficult for them to conduct effective operations. Consider the lethality rate of Hamas attacks since the start of the second intifada. The number of Hamas attacks grew steadily as the intifada progressed, even as Israel eliminated Hamas members: there were 19 attacks in 2001, 34 in 2002, 46 in 2003, 202 in 2004, and 179 in 2005 (most in the first half of that year, before a tentative cease-fire took hold). But as the number of attacks grew, the number of Israeli deaths they caused plunged, suggesting that the attacks themselves became far less effective. The lethality rate rose from 3.9 deaths per attack in 2001 to 5.4 in 2002, its highest point. Then, in 2003 the rate began to fall, dropping to 0.98 deaths per attack that year, 0.33 in 2004, and 0.11 in 2005.

TARGETED KILLINGS FORCE TERRORISTS INTO HIDING

Byman, 2006 (Daniel, Director of the Center for Peace and Security Studies and of the Security Studies Program at Georgetown University's School of Foreign Service. “Do Targeted Killings Work?” Foreign Affairs. Vol. 85 Issue 2(Mar/Apr 2006) p95-111.)


Targeted Killing AffFrequent targeted killings also force surviving terrorists to spend more and more of their time protecting themselves. To avoid elimination, the terrorists must constantly change locations, keep those locations secret, and keep their heads down, all of which reduces the flow of information in their organization and makes internal communications problematic and dangerous.Over time, the stress of such demands on terrorists becomes enormous. Operatives cannot visit their parents or children without risking death. Rantisi, Yassin's successor, was killed on April 17, 2004, when he broke his cautious routine to visit his home. Explaining Hamas' decision to endorse a cease-fire in 2005, Dichter, the former Shin Bet head, contends that "senior Hamas leaders decided they were tired of seeing the sun only in pictures." Leaders in hiding also face difficulties motivating their followers. After Israel killed Yassin, Hamas appointed Rantisi as his successor. Israel promptly killed Rantisi. Hamas then announced that it had appointed a new leader but would not name him publicly: a necessary step for his survival perhaps but hardly a way to inspire the group's followers or win new converts with a show of bravery.

TARGETED KILLING BENEFITS PREVENTING TERRORISM

Fisher, 2007 ( Jason,Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A. University of California, Berkeley, 2006. “45 Colum. J. Transnat'l L. 711.” Columbia Journal of Transnational Law. (2007) p.735.

Targeted killing may provide several benefits. First, if successful, targeted killing can prevent terrorism by eliminating terrorist threats before they are launched. Second, targeted killing may "impede[] the effectiveness of ... terrorist organizations where leadership, planning, and tactical skills are confined to relatively few individuals." If the people who have such skills are eliminated, the ability to mount effective terrorist attacks can be reduced. Third, targeted killing may keep terrorists and those producing devices for use by terrorists on the run, thereby reducing their attack capabilities. The time and effort terrorists expend to avoid being the objects of targeted killing actions necessarily reduces the time and effort they [*735] can dedicate to preparing, planning, or conducting terrorist attacks. Fourth, targeted killing may also act as a deterrent. While it might appear impossible to deter "those people willing ... to lose their [lives,] ... behind every suicide bomber are others who might not be as ready for martyrdom." Fifth, with respect to political effectiveness, the use of targeted killing as a counter-terrorism tactic seems to be popular with the domestic constituencies of those States employing it. A Wall Street Journal poll of U.S. citizens found that approximately seventy percent of respondents favored the use of targeted killing for counter-terrorism purposes and a poll published by Ma'ariv found that ninety percent of the Israeli public supported the use of targeted killing to counter terrorism. Finally, to the extent that targeted killings are carried out with precision, they are less likely to garner international criticism than large-scale military incursions into civilian areas designed to apprehend terrorists. Large scale military incursions, beyond exposing security forces to increased risk, frequently engender hostility that ultimately leads to increased harm to civilians and civilian property, which is subsequently subject to criticism in the international public relations arena.

TARGETED KILLING PROVIDES ADVANTAGE IN DEALING WITH TERRORISTS

Targeted Killing AffFisher, 2007 ( Jason,Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A. University of California, Berkeley, 2006. “45 Colum. J. Transnat'l L. 711.” Columbia Journal of Transnational Law. (2007) p.736-737.

So does targeted killing provide a net advantage or disadvantage in dealing with terrorism? Recently published statistical studies suggest that, overall, targeted killing is an effective counter-terrorism tactic. While available statistical evidence suggests that targeted killings lead to retaliatory terrorist attacks and increased recruitment, such targeted killings also appear to eliminate terrorists with leadership, planning, and tactical skills, which can render terrorist organizations much less capable of effectively conducting attacks. The statistical evidence indicates that, despite an increase in terrorist attacks, casualties and deaths from such attacks, both in absolute and per-attack terms, have fallen sharply since Israel began regularly employing targeted killing in the al-Aqsa Intifada. Thus, it appears that targeted killing can be an effective counter-terrorism tactic; to date, targeted killing's ability to degrade terrorists' capabilities appears to be outweighing any concomitant increase in terrorist recruitment, retaliation, and cooperation the tactic's use may have spurred. A norm permitting the use of targeted killing as a counter-terrorism tactic would seem to fit well in the current international environment. Targeted killing accounts for prevailing issues and conditions in the international system, it reflects both existing and developing technology, and it is a means that can be used to address terrorism effectively.

TARGETED KILLLING UNDERMINES TERRORIST GROUPS

Tucker, 2003 (Jonathan,Ph.D., is a policy analyst specializing in chemical and biological weapons proliferation and control. He is a 2002–03 senior fellow at the U.S. Institute of Peace in Washington, DC, on leave from the Monterey Institute’s Center for Nonproliferation Studies. “Strategies for Countering Terrorism: Lessons from the Israeli Experience.” (2003)p.3.

Advocates of this policy argue that in addition to interdicting imminent attacks, targeted killings undermine the terrorist groups’ stability and morale, increase tensions and rivalries among would-be successors, and force the terrorists to devote resources to hiding and protecting their leaders. 28 Targeted assassination also puts terrorist kingpins under severe psychological stress. Nevertheless, the Israeli policy of targeted killings raises complex issues of legality and cost-effectiveness. Under what conditions does national self-defense justify the summary execution of terrorists? Most countries view terrorism as a crime and believe that retribution for terrorist acts should be pursued through the legal process. Israel, in contrast, views terrorism as a form of warfare and claims that the laws of war apply, including the right of preemptive action. In early 2002, an IDF judge advocate-general ruled that the assassination of terrorists is legal when (1) well-supported information exists that the suspect has organized terror attacks in the past and is planning to carry out another one in the near future; (2) appeals to the Palestinian Authority to arrest the terrorist have been ignored; (3) attempts by Israeli troops to arrest the suspect have failed; and (4) the killing is not intended as retribution for past acts of terror but is designed to prevent an incipient attack that is likely to inflict multiple casualties.

TARGETED KILLING EFFECTS TERRORISM; BOOMERANG EFFECT

Ganor, 2005 (Boaz, Ph,D. Associate Dean of the Lauder School of Government, the founder and Executive Director of the International Institute for Counter-Terrorism, and the Head of the Homeland

http://www.homelandsecurity.org/journal/articles/tucker-israel.html#end28

Targeted Killing AffSecurity Studies Programs of the Interdisciplinary Center). The Counter Terrorism Puzzle. Transaction Publishers.p.295.

Nations should not ignore the boomerang effect, which may be results of carrying out effective counter-terrorism actions. But when assessing the possibility of such a response, the nation should differentiate between organizations for which the main factor limiting their operations is their operational capability (in such cases, despite their desire for vengeance due to the nation’s operational action, they will be unable to act on their motivation) ; and between organizations whose operational capability is greater than their motivation (in which case we may expect the boomerang effect) Even in cases where the leadership believes that action directed towards the terrorist organization might result in a boomerang effect, such action should not be rejected. The advantages of carrying out any operation should be weighed against the potential damage.

TARGETED KILLING IMPROVES PREVENTION OF TERRORISM Fisher, 2007 ( Jason,Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A. University of California, Berkeley, 2006. “45 Colum. J. Transnat'l L. 711.” Columbia Journal of Transnational Law. (2007) p.735.Targeted killing may provide several benefits. First, if successful, targeted killing can prevent terrorism by eliminating terrorist threats before they are launched. Second, targeted killing may "impede[] the effectiveness of ... terrorist organizations where leadership, planning, and tactical skills are confined to relatively few individuals." If the people who have such skills are eliminated, the ability to mount effective terrorist attacks can be reduced. Third, targeted killing may keep terrorists and those producing devices for use by terrorists on the run, thereby reducing their attack capabilities. The time and effort terrorists expend to avoid being the objects of targeted killing actions necessarily reduces the time and effort they [*735] can dedicate to preparing, planning, or conducting terrorist attacks. Fourth, targeted killing may also act as a deterrent. While it might appear impossible to deter "those people willing ... to lose their [lives,] ... behind every suicide bomber are others who might not be as ready for martyrdom." Fifth, with respect to political effectiveness, the use of targeted killing as a counter-terrorism tactic seems to be popular with the domestic constituencies of those States employing it. A Wall Street Journal poll of U.S. citizens found that approximately seventy percent of respondents favored the use of targeted killing for counter-terrorism purposes and a poll published by Ma'ariv found that ninety percent of the Israeli public supported the use of targeted killing to counter terrorism. Finally, to the extent that targeted killings are carried out with precision, they are less likely to garner international criticism than large-scale military incursions into civilian areas designed to apprehend terrorists. Large scale military incursions, beyond exposing security forces to increased risk, frequently engender hostility that ultimately leads to increased harm to civilians and civilian property, which is subsequently subject to criticism in the international public relations arena.9/11 BROUGHT ON THE NATIONAL SECURITY STRATEGY AND BROUGHT PEOPLE TO THE REALIZATION THAT TERRORISM IS DANGEROUS AND SHOULD BE TREATED AS SUCHMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 8-9)The removal of the Taliban, the dispersion of al-Qaeda and the loss of Afghanistan as a safe base of operation for terrorists achieved through Operation Enduring Freedom was not the end state sought by the Bush administration. The magnitude of the 9/11 attacks brought about the realization that “there can be no doubt, if there ever was before, that the terrorist threat against the United States is real substantial and ongoing.”26 The

Targeted Killing Affrecognition of this persistent and credible threat presented by al-Qaeda and other trans-national terrorist organizations capable of projecting violence across international borders, resulted in a broad and dynamic reassessment of US national security policy by the Bush administration. The result of this strategic reassessment was the publication of the National Security Strategy of 2002, a document historian John Lewis Gaddis referred to as: “an historic shift for American foreign policy because it really is the first serious American grand strategy since containment in the early days of the Cold War. We went through the Cold War, the Cold War ended, and we got into a new situation without a grand strategy. We didn't really devise a grand strategy in the early '90s in the immediate aftermath of the Cold War. And I would argue that the Bush grand strategy is the most fundamental reshaping of American grand strategy that we've seen since containment, which was articulated back in 1947.”

THE NATIONAL SECURITY STRATEGY PUT FORTH THREE GOALSMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 9)The primary objectives of the 2002 National Security Strategy rest upon three pillars: defending the peace by combating terrorists and tyrants, preserving the peace through the strengthening of alliances and maintaining solid relations among the great powers, and extending the peace through the promotion of democracy and freedom worldwide. The most provocative and controversial aspect of the Strategy is the expansion of the doctrine of pre-emptive self-defense. As stated within the Strategy: “Given the goals of rogue states and terrorists, the United States can no longer rely solely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries" choice of weapons, do not permit that option. We cannot let our enemies strike first… We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means….” The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.

UNITED STATES POLICY CHANGE ON HOW TO DEAL WITH TERRORISMMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 10)The National Strategy for Combating Terrorism, released in February 2003, provides even greater detail about US policy in the conduct of the war on terror. In establishing the 4D strategy (Defeat, Deny, Diminish, and Defend) the document clearly articulates that “the United States and its partners will target individuals, state sponsors, and transnational networks that enable terrorism to flourish.”29 The National Strategy for Combating Terrorism adopts an even more aggressive tone than the National Security Strategy: “the Defeat goal is an aggressive, offensive strategy to eliminate capabilities that allow terrorists to exist and operate – attacking their sanctuaries; leadership;

Targeted Killing Affcommand, control and communications; material support and finances.”

TERRORISM IS A CONSTANT THREATMachon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p. 10-11)The language and tone of both the National Security Strategy and the National Strategy for Combating Terrorism indicate the Bush administration’s recognition that the existing and persistent threat posed by international terrorism constitutes a state of war. The Bush administration recognizes the existence of a state of war between the United States and terrorist organizations of global reach that present a credible and persistent threat to the security of the United States and its citizens.

PRESIDENT BUSH WAS ENCOURAGED TO ENACT A POLICY THAT INVOLVES “TARGETED KILLING”Machon, 2006 (Matthew J., Professor at the School of Advanced Military Studies, “Targeted Killing as an Element of US Foreign Policy in the War on Terror.” Monogram. (May 25, 2006) p.11)The November 2002 Yemen missile strike outlined in the introduction was the initial transition from the battlefields of Afghanistan to a policy of ‘targeted killing,’ striking terrorist leaders in their safe havens. Commenting on the strike, then National Security Advisor Condoleeza Rice insisted President Bush acted within the accepted practice of past precedent and within his constitutional authority when authorizing such attacks. “The president has given broad authority to a variety of people to do what they have to do to protect this country," she said. "It's a new kind of war. We're fighting on a lot of different fronts."TERRORIST LEADERS ARE LEGITMIATE WAR-TIME ASSASINATION TARGETS


Perhaps the greatest impediment to recognizing terrorist leaders as the appropriate objects of hostility in wartime are the aforementioned [*494] formalities of international law used to identify combatants. n190 Indeed, "we should think of terrorism as a concerted effort to blur [the] distinction" between civilians and combatants. n191 But under just war theory, terrorist leaders, like military leaders in the traditional military context, are combatants. Like military leaders, they strategize and instruct their subordinates in killing: "They are the instigators, organizers and commanders of an armed struggle." n192 It is this direct involvement with killing that gives terrorist leaders the capacity to injure and that makes them combatants. Thus, terrorist leaders can be the legitimate targets of assassination in wartime.





Targeted Killing Is Retributive TARGETED KILLING AVENGES DEATH OF CITIZENSTargeted killing also serves Israel’s interests because it affords the Israeli public a calibrated form of revenge. Revenge is seen by many as a destructive and even evil motivation that should be avoided at all costs. This explains the 2002 decision by the IDF judge advocate general that allowed targeted killings but prohibited those undertaken for vengeance. But revenge is also a natural desire by an individual or society for obtaining justice when other means are not available. Achieving revenge can bring about a sense of fulfillment and justice for people who believe they have been wronged. Failing to achieve revenge can lead to despair, frustration, and anger. Politically, this can lead to the downfall of governments unwilling or unable to avenge attacks on its people. More fundamentally, withstanding repeated attacks without responding can lead to a sense of impotence and malaise that could weaken a society’s ability to protect itself. Israel, like other states, has a moral right to exist. One of the greatest immoralities a state can commit is to behave in a way that results in its own destruction. Insofar as vengeance against terrorist acts contributes to Israel’s security by reassuring the public, its practice is morally justifiableIF FAMILIES ARE AVENGED TARGETED KILLING IS SUPPORTEDBecause the killers of Israeli civilians are themselves killed, the desire for revenge from both families of the victims and the society at large is met. Anger at the government is dissipated as the perpetrators of terrorism receive as punishment the same fate as their victims.A July 2001 poll by the Tami Steinmetz Center for Peace Research at Tel Aviv University found that 70 percent of Israelis support targeted killing..


Civilians and Targeted KillingTARGETED KILLING COMPLIES WITH INTERNATIONAL HUMANITARIAN LAWSchmitt 2009 (Michael, Dean and Professor of InternationalLaw George C. Marshall European Center for Security Studies, Targeted Killing in International Law, American Journal of International Law, (October 2009) P. 814)Few international law topics evoke such a visceral response as "targeted killings." The attention paid them is somewhat curious since attacks must actually be "targeted" if they are to comply with the international humanitarian law (IHL). Article 51.4 of Additional Protocol I of 1977 n1 expressly provides that "indiscriminate attacks are prohibited," explaining that they include those "which are not directed at a military objective . . . and consequently . . . are of a nature to strike military objectives and civilians or civilian objects without distinction." The United States, inter alia, is not a party to Additional Protocol I. However, the Customary International Humanitarian Law study of the International Committee of the Red Cross (ICRC) correctly asserts in Rules 11 and 12 that an analogous prohibition exists in customary law for both international and noninternational armed conflicts. n2 Human rights norms, binding in certain circumstances of armed conflict and generally applicable in the absence thereof, are equally demanding. There is no question that an attack that is not targeted violates international law.

TARGETED KILLINGS HAVE SPECIFIC PROTOCOLS TO BE ADHERED TO DURING WARTIME Schmitt 2009 (Michael, Dean and Professor of International Law George C. Marshall European Center for Security Studies, Targeted Killing in International Law, American Journal of International Law, (October 2009) P. 813-814)The crux of the matter is, instead, who it is that is targeted and in what circumstances. During armed conflict, the rules are, at least textually, straightforward. Article 48 of Additional Protocol I, which applies in international armed conflict, requires belligerents to "at all times distinguish between the civilian population and combatants . . . and accordingly . . . direct their operations only against military objectives." This broad restatement of the customary law principle of distinction is operationalized in Article 51: "The civilian population as such, as well as individual civilians, shall not be the object of attack." However, the Protocol cautions that civilians lose this protection from attack "for such time as they take a direct part in hostilities." Common Article 3 to the four 1949 Geneva Conventions similarly forbids, in "conflicts not of an international character," acts of "violence to life and person" directed at "persons taking no active part in hostilities"--a [*814] proscription repeated in substance in Article 4 of Additional Protocol II of 1977. As to the killing of a specific individual outside the context of armed conflict, human rights law imposes a number of requirements, the most important of which are that it be preventive in nature and used only as a last resort to protect human life.TARGETED KILLING ADHERES TO THE DISCTINCTION NORM JUSTIFYING ITFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P. 744-745) Targeted killing can be - and most U.S. and Israeli targeted killing actions have been - conducted in a manner that comports with the distinction norm. n202 By definition, targeted killing targets only [*745] those individuals engaged in planning, preparing, and conducting terrorist attacks - just and legitimate targets. Furthermore, Walzer appears to lend direct support to the idea that such specific targeting complements distinction. Referencing the targeting of specific German soldiers during World War II in discussing distinction, Walzer states, "the German army in France had attacked civilians in ways that justified the assassination of individual soldiers." n203 As with the proportionality norm, the distinction norm is also prevalent in the discourse of U.S. and Israeli security forces. It is introduced and reinforced in training manuals, guidelines, and exercises, and relevant to appropriate targeting.






COLLATERAL DAMAGE DOESN’T DEJUSTIFY TARGETED KILLINGFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P.745) While injury to illegitimate targets - those not qualifying as legitimate targets - should be avoided if possible, just war theory recognizes that it is inevitable that some such civilians will be endangered and likely harmed during armed conflict. In such situations, the doctrine of double effect, which combines elements of the distinction and proportionality norms, governs. According to the doctrine, an act that may cause harm to civilians can be carried out if: [1] [The act is designed to achieve a legitimate military objective.] [2] The direct effect is morally acceptable ... for example, ... the killing of enemy soldiers. [3] The intention of the actor is good, that is, he aims only at the acceptable effect; the evil [secondary] effect[, harm to civilians,] is not one of his ends, nor is it a means to his ends[. Moreover, aware of its possibility, the actor seeks to minimize the evil effect, accepting greater personal risk if necessary to do so]. [4] The good effect is sufficiently good to compensate for allowing the evil effect ... . n205 Further, just war theorists tend to stress the requirement that combatants take on greater risk to themselves if doing so would lessen the risk of harm to civilians. n206 Professor Walzer goes so far as to state that "the seriousness of the intention to avoid harming civilians ... is best measured by the acceptance of risk.”WHEN TARGETED KILLING IS USED, ISRAELI AND THE UNITED STATES TAKE ACTION TO MINIMIZE HARM TO CIVILIANSFisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P. 745-746) Targeted killing can be employed in a fashion that satisfies [*746] the doctrine of double effect. Moreover, most of the U.S. and Israeli targeted killing operations conducted thus far may be considered as having satisfied the doctrine. n208 Generally, the Shehada strike notwithstanding, both the United States and Israel take steps to ensure that they minimize harm to civilians during targeted killing attacks. With respect to such situations, the IDF contends that it "goes to great lengths not to harm innocent bystanders" n209 and the U.S. military maintains that it "takes pains to ensure that civilians are spared." n210 As with proportionality and distinction, guidelines require members of the security services to act in accord with elements of the doctrine of double effect. For instance, the Israeli Principles demand that counter-terrorism activities be "carried out in a manner that strictly protects human life and dignity by minimizing all collateral damage to individuals not directly involved in acts ... of terror."TARGETED KILLING MINIMIZES RISKS TO CIVIILLIANS Fisher 2007 (Jason, Judicial Clerk to the Honorable James O. Browning, United States District Court for the District of New Mexico; J.D./M.A, “Targeting Killings, Norms, and International Law”, Columbia Journal of Transnational Law, (2007) P.746) Even though targeted killing is most often employed by aerial means that afford a heightened level of protection for security forces, n212 to claim that it necessarily violates the doctrine of double effect, because it trades increased risk to civilians for decreased risk to security forces, would be incorrect. For purposes of the doctrine of double effect, targeted killing must be evaluated against the alternative means of eliminating terrorist threats - incursion. n213 U.S. and Israeli incursion efforts, including respectively those in Afghanistan and the West Bank in 2002, have led to many civilian casualties and deaths, and to much destruction of civilian property. n214 Experience demonstrates that large-scale incursions put civilians at far greater risk than targeted killing actions. n215 As such,










Targeted Killing Afftargeted killing can be viewed as an attempt to minimize harm to civilians, as a least bad option, and as in accordance with the doctrine of double effectCIVILIANS ARE PROTECTED FROM INTENTIONAL ATTACKS UNTIL MILITARY OBJECTIVES ARE DETERMINDED TO BE SUFFIECIENTLY IMPORTANTWatkin, 2004 (Kenneth, Colonel and Deputy Judge Advocate General/Operations, Canadian Forces, “Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict.” The American Society of International Law American Journal of International Law. 98 (January 2004) p. 16).Civilians such as industrial workers have often prompted moral questions concerning their degree of contribution to the war effort. Additional Protocol I specifically protects them from intentional attack "unless and for such time as they take a direct part in hostilities." The targeting of military objectives raises the issue of double effect, or what in contemporary language is more generally called the "principle of proportionality." According to this principle, civilians who are protected and immune from intentional direct attack may still be injured or killed if the military objective is determined to be sufficiently important. Much of the discussion of targeting under international humanitarian law has traditionally concentrated on the proportionality test and potential collateral damage to civilians. The current increased scrutiny of the issue of specifically targeting individuals has resulted in questions as to the kind of action that constitutes assassination and, if legal, whether it can be considered an effective means of conducting operations. The outcome of that debate does not alter the fact that persons taking a direct part in hostilities are subject to being lawfully targeted by the opposing force. Under both Additional Protocols, the direct involvement of civilians in hostilities does not affect their legal status, but it does mean that they will lose the protection of that status and could be targeted. Consequently, the principle of distinction is perhaps more accurately described as distinguishing between combatants, legal or otherwise, and those civilians who do not take a direct part in hostilities.INTERNATIONAL HUMANITARIAN LAW RESTRICTS THE KILLING OF A PERSON THAT IS NOT IN CUSTODY UNLESS IT IS TO PREVENT FROM POSING A THREAT OF DEATH OR SERIOUS INJURY TO OTHERS.Murphy and Radsan, 2009 (Richard and Afsheen John, both are professors of Law, “Due Process and Targeted Killing of Terrorists.” Ueshiva University Cardozo Law Review. 32 (November 2009) p. 408-409)From the technical stance of the law, much of the controversy over targeted killing stems from the fact that it does not fit comfortably into either of two models that generally control the state's use of deadly force: human rights law and international humanitarian law (IHL). The human rights model controls law enforcement operations generally, and it permits the state to kill a person not in custody only if necessary to prevent him from posing a threat of death or serious injury to others. IHL is that part of the laws of war that enforces minimum standards of humane treatment of individuals. As part of the lex specialis of war, IHL displaces the human rights model during armed conflicts, granting the state broad authority to kill opposing combatants as well as civilians who are directly taking part in hostilities. Under this two-model dichotomy, extra-judicial, targeted killing of a person who is not an imminent threat can be legal only as permitted under IHL. However, conceding that IHL - as part of the laws of war - can apply to targeted killing might seem to grant the executive too much power to categorize suspected terrorists as combatants and then kill them off without a shred of process.ISRAELI TWO-CATEGORY APPROACH TO TARGETED KILLING PERMITS CIVILIANS BEING SUBJECT TO TARGETED KILLINGS<INPUT NAME=\

Bradley, 2009 (Curtis A., Professor at Duke Law School, “The United States, Israel and Unlawful Combatants.” The Green Bag AN Entertaining Journal of Law. 12 (Summer 2009) p. 401).By contrast, the Israeli Supreme Court has endorsed the two-category approach. In its December 2006 decision in Public Committee against Torture in Israel v. Government of Israel, the court

Targeted Killing Affconsidered the legality of Israel's policy of targeted killing of members of terrorist organizations involved in the planning, launching, or execution of terrorist attacks against Israel. In rejecting the Israeli government's argument that the court should recognize an "unlawful combatant" category under international law, the court concluded that "the data before us are not sufficient to recognize this third category." The court then proceeded to consider the circumstances under which civilians may be subjected to targeted killings. In its June 2008 decision in A. v. State of Israel, the court addressed the legality of Israel's terrorist detention law, and it once again purported to apply a two-category approach. Although Israel's detention statute specifically refers to "unlawful combatants," the court concluded that, under international law, individuals falling into that classification are simply within a sub-group of the category of civilians. The court then proceeded to consider the circumstances under which civilians may be detained.THE DEATH OF NONCOMBATANTS DUE TO THE LAWFUL ATTACK OF A MILITARY OBJECTIVE ISN’T CATEGORIZED UNDER ASSASSINATIONParks, 1989 (W. Hays, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, “Memorandum on Executive Order 12333 and Assassination.” Department of the Army: Office of the Judge Advocate General of the Army. (November 2, 1989) HYPERLINK "http://www.hks.harvard.edu/cchrp/Use%20of%20Force/.../Parks_final.pdf"www.hks.harvard.edu/cchrp/Use%20of%20Force/.../Parks_final.pdf accessed July 10, 2011).Likewise, the death of noncombatants ancillary to the lawful attack of a military objective is neither assassination nor otherwise unlawful. Civilians and other noncombatants who are within or in close proximity to a military objective assume a certain risk through their presence in or proximity to such targets; this is not something about which an attacking military force normally would have knowledge or over which it would have control. The scope of assassination in the U.S. military was first outlined in U.S. Army General Orders No. 100 (1863). Paragraph 148 states: Assassination. The law of war does not allow proclaiming either an individual belonging to the hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be slain without trial by any captor, any more than the modern law of peace allows such international outlawry; on the contrary, it abhors such outrage….This provision, consistent with the earlier writings of Hugo Grotius, was continued in U.S. Army Field Manual 27-10 (1956), which provides (paragraph 31):[Article 23(b), Annex to Hague Convention IV, 1907] is construed as prohibiting assassination, proscription, or outlawry of an enemy, or putting a price upon an enemy’s head, as well as offering a reward for an enemy “dead or alive.” The foregoing has endeavored to define assassination in the sense of what the term normally encompasses, as well as those lawful acts carried out by military forces in time of war that do not constitute assassination. The following is a discussion of assassination in the context of specific levels of conflict.


Targeted Killing Upholds Due ProcessDUE PROCESS RESTRICTIONS ON TARGETED KILLING ARE “ABSURD”

Murphy and Radsan, 2009 (Richard and John, Professors of Law, “Due Process and Targeted Killing of Terrorists”, Cardozo Law Review 32.405, L/N).

But on another view, nothing could be more absurd than courts attempting to conform armed conflict to judicial norms. Justice Thomas has been a vocal proponent for this view. n24 Indeed, he used the 2002 Predator strike cited at the beginning of this Article to mount a reductio ad absurdum attack on his colleagues' efforts in Hamdi to impose due process on the detention of enemy combatants. n25 Dissenting, he contended that the controlling plurality's approach led to the absurd conclusion that the government should give terrorists notice and an opportunity to be heard before firing a missile at them. n26 More broadly, Justice Thomas asserted that the courts have neither the authority nor the competence to second-guess the executive's detention of enemy combatants. n27 Implicit is that courts should not second-guess the killing of enemy combatants either.

TARGETED KILLING DOES NOT ABANDON DUE PROCESS; ISRAEL PROVES


Two ways out of the "revolving door" problem have been suggested. One is to relax the meaning of "for such time as [civilians] take direct part in hostilities." This is what the Israeli Supreme Court did in its recent, in-depth exploration of the legality of targeted killing in international armed conflicts in The Public Committee Against [*420] Torture in Israel v. The Government of Israel (PCATI). n75 In this case, the court explained that a civilian can lose his immunity by taking direct part in hostilities by, inter alia: (a) "preparing himself for the hostilities"; n76 (b) planning a hostile act or sending others to commit one; n77 or (c) engaging in a "chain of hostilities" as an active member of a terrorist organization. n78 The combined effect of this guidance seems to be that active members of terrorist groups are "civilians" in a technical sense but are proper targets for direct attack at any time until they decisively withdraw from the group.










DUE PROCESS AND TARGETED KILLING ARE NOT INCOMPATIBLE; US SUPREME COURT PROVES


Judicial control of targeted killing could increase the accuracy of target selection, reducing the danger of mistaken or illegal destruction of lives, limbs, and property. Independent judges who double-check targeting decisions could catch errors and cause executive officials to avoid making them in the first place. More broadly, judicial control of targeted killing could serve the interests of all people - targets and non-targets - in blocking the executive from exercising an unaccountable, secret power to kill. n191 If possible, we should avoid a world in which the CIA or other executive officials have unreviewable power to decide who gets to live and who dies in the name of a shadow war that might never end. Everyone has a cognizable interest in stopping a slide into tyranny. Yet - in favor of executive autonomy - we live in an imperfect world where judicial obstacles to killing could hinder national security. It would be silly, for instance, to require the military to use the full procedures of the law enforcement model to decide what to bomb in the midst of a war. Likewise, given the conflict with al Qaeda, it may be silly to judicialize the process for killing its committed members. Moreover, not only does judicialization threaten national security, it might not deliver countervailing benefits because courts lack the competence to improve military and national security decisions

STATUS QUO USE OF TARGETED KILLING INCLUDES DUE PROCESS PROTECTIONS


The Supreme Court of Israel's decision in PCATI is again informative. n230 As noted above, the Court regarded the Israeli-Palestinian conflict as subject to the law of international armed conflict. n231 It categorized the Palestinian targets as "civilians" who could be targeted only when directly participating in hostilities. n232 This decision did not put security forces in a straitjacket, though, because the Court also adopted a generous interpretation of what it means to "directly participate" in hostilities. n233 The Court recognized that this generous interpretation increased the risk of improper targeting of peaceful civilians. It therefore crafted a set of legal limits to curb errors and abuses, citing customary international law, human rights case law, and a raft of secondary authorities. n234 The checks include: (a) thorough verification "regarding the identity and activity of the civilian who is allegedly taking part in the hostilities"; (b) forbidding deadly attacks if other means, such as arrest, can be used without imposing too great a risk on security forces or others; and (c) following up an attack on a civilian by an independent, intra-executive investigation "regarding the precision of the identification of the target and the circumstances of the attack." n235 [*447] For good measure, the Court said the internal investigation should be subject to judicial review.









ASSANGE AND WIKILEAKS ARE A THREAT TO THE NATIONAL SECURITY OF THE U.S. AND ITS ALLIES

ASSANGE AND WIKILEAKS WILL CONTINUE TO PUBLISH LEAKED DOCUMENTS IN AN EFFORT TO “CREATE SOMETHING LIKE SAFETY”

Crawford, 2010 (Carly, staff writer for the Herald Sun, “Aussie activist defies military.” Herald Sun. 1 (August 9, 2010) p. 28) L/N

MELBOURNE activist Julian Assange has vowed to post more sensitive US military files online, directly defying the Pentagon. Up to 15,000 more military files will be uploaded on to his WikiLeaks website despite a plea from the US military that he return the documents, which contain classified accounts of the Afghanistan war. ``I can assure you that we will keep publishing documents -- that's what we do,'' WikiLeaks spokesman Daniel Schmitt said yesterday. ``Knowledge about ongoing issues like the war in Afghanistan is the only way to help create something like safety. Hopefully with this understanding, public scrutiny will then influence governments to develop better politics.'' Mr. Schmitt is one of four people who work full-time with Mr. Assange on the site, which has come under fierce attack from the White House for publishing 76,000 classified documents last month. ASSANGE JEOPARDIZES THE MILITARY OPERATIONS OF MULTIPLE COUNTRIES

Crawford, 2010 (Carly, staff writer for the Herald Sun, “Aussie activist defies military.” Herald Sun. 1 (August 9, 2010) p. 28) L/NThe papers reveal civilian casualties, military tactics and the identities of some of the Afghan informants helping coalition troops rid the country of the Taliban. Military officials claim the documents could jeopardize the mission and endanger the lives of soldiers. The Pentagon last week demanded WikiLeaks abandon plans to post more material. The US army and FBI are investigating the source of the leaks and the Pentagon is conducting a sweeping review of all the documents, which detail activity from 2004-09 to establish if any operations have been compromised. Pentagon spokesman Geoff Morrell said yesterday that Australia and other coalition countries would be notified immediately if investigators identified any threats to their soldiers. ``We are in the process of contacting each of the countries that is named so they're aware of any exposure to their troops,'' he said. He would not say if Australian defense officials had been contacted, nor if investigators believed Australia's 1550 troops were in harm's way. Mr. Schmitt said WikiLeaks was vetting the documents to ensure lives were not at risk, saying the Pentagon had ignored requests for help. ``We have tried our best and we are still working on minimizing the harm that has been caused.''

Targeted Killing AffASSANGE VIOLATED NATIONAL SECURITY LAWS

Michaels, 2010 (Jim, Reporter, “WikiLeaks actions: An act of cyberwar?”, USA Today, December 14, http://www.usatoday.com/news/world/2010-12-14-wikileaks14_ST_N.htm, accessed July 14, 2011, np)

Adm. Michael Mullen, chairman of the Joint Chiefs of Staff, has said WikiLeaks' publishing of stolen documents endangers lives and gives enemies valuable information. Assange's lawyers say a huge file of unreleased secret material will be made public if the United States attempts to prosecute him. Assange's actions warrant a cyberattack, some say. Christian Whiton, a former State Department official under the Bush administration, says WikiLeaks is a foreign organization trying to impede U.S. policy. "Assaulting the company electronically is something worth trying," Whiton says. "It buys you time to go after the organization in other ways." Experts say the government is struggling with developing rules that will govern such warfare, particularly when fighting unconventional enemies. Launching a cyberattack could raise sovereignty issues if, for example, servers were located in a friendly country. "Every time one question is answered, more questions pop up," says Army Lt. Col. Robert Fanelli, a computer sciences assistant professor at West Point. Lin says key questions are what constitutes an attack and when would it be justified. Assange has been accused by the Justice Department of violating national security laws, but he hasn't been identified as an enemy.

ASSANGE IS LEADING AN INTERNET INTIFADA

New York Daily New, 2010 (Staff Editorial, Cyberwarfare isn't science fiction, it's here, as attacks on perceived enemies of WikiLeaks showed, New York Daily News, http://articles.nydailynews.com/2010-12-13/news/27084196_1_wikileaks-cyberwarfare-islamic-terror, accessed on July 14, 2011, np)The latest breed of anarchist is not a protester who takes to the streets, Molotov cocktail in hand. His weapon of choice is the laptop and his battleground the Internet, which he uses to steal information or to disrupt life in the digital age. The personification of these Internet intifadists is Julian Assange of WikiLeaks infamy.

DOCUMENT PUBLISHED BY JULIAN ASSANGE RISKS CIVILIAN LIVES, MILITARY OPERATIONS AND INTERNATION COOPERATION

Leigh, 2010 (David, Staff writer for the Guardian, “250,00 leaked files that lay bare US view of world: Washington engulfed by global diplomatic crisis: Dispatches reveal US officials told to spy on UN.” The Guardian. Final Edition (November 29, 2010) p. 1) L/NThe state department's legal adviser has written to the founder of WikiLeaks, Julian Assange, warning that the publication would place at risk "the lives of countless innocent individuals . . . ongoing military operations . . . and co-operation between countries".


http://www.usatoday.com/news/world/2010-12-14-wikileaks14_ST_N.htm

Targeted Killing AffWIKILEAKS AND ASSANGE STRENGTHEN TRADITIONAL TERRORISTS ORGANIZATIONS LIKE AL-QAEDA

New York Daily New, 2010 (Staff Editorial, Cyberwarfare isn't science fiction, it's here, as attacks on perceived enemies of WikiLeaks showed, New York Daily News, http://articles.nydailynews.com/2010-12-13/news/27084196_1_wikileaks-cyberwarfare-islamic-terror, accessed on July 14, 2011, np)

A concentrated attack via the Web could disrupt any facet of American life, from banking to medicine to transportation - and with the same murderous effect as a conventional act of terror. Make no mistake: America's enemies will work that game if they can. Already, Web-savvy jihadists are scouring the WikiLeaks documents for signs of American vulnerability. According to the Middle East Media Research Institute, "a member of the jihadi forum the Shumukh Al-Islam initiated a 'workshop' aiming to collect, categorize and pinpoint all U.S. interests worldwide mentioned in documents released by WikiLeaks." That information will without question be transmitted - digitally, most likely - to those most willing and able to harm the United States. America must block such a catastrophe from happening by mounting a massive and ever-evolving cybersecurity drive. Someone recently demonstrated how effective an attack can be by, for the first known time, successfully wielding a cyberweapon against a real-world target. A virus called Stuxnet infiltrated Iran's nuclear program and damaged its processing equipment. The end was fantastic; the means were terrifying. Suppose the tables were turned on the U.S.? ASSANGE THREATENS NATIONAL SECURITY, INTERNATIONAL RELATIONS AND GLOBAL SECURITY

Clinton, 2010 (Hillary Rohdam, Secretary of State, “Remarks to the Press on the Release of Confidential Documents.” Press Conference, (November 29, 2010) http://www.state.gov/secretary/rm/2010/11/152078.htm accessed July 14, 2011)The United States strongly condemns the illegal disclosure of classified information. It puts people’s lives in danger, threatens our national security, and undermines our efforts to work with other countries to solve shared problems. This Administration is advancing a robust foreign policy that is focused on advancing America’s national interests and leading the world in solving the most complex challenges of our time, from fixing the global economy, to thwarting international terrorism, to stopping the spread of catastrophic weapons, to advancing human rights and universal values. In every country and in every region of the world, we are working with partners to pursue these aims. So let’s be clear: this disclosure is not just an attack on America’s foreign policy interests. It is an attack on the international community – the alliances and partnerships, the conversations and negotiations, that safeguard global security and advance economic prosperity.

http://www.state.gov/secretary/rm/2010/11/152078.htm



CYBER SECURITY IS A CRITICAL NATIONAL SECURITY ISSUE

CYBER WARFARE IS A GROWING THREAT TO NATIONS

Leaven&Dodge 2010 (Tod&Christopher, civil litigation attorney, J.D. candidate, The United States Cyber Command: International Restrictions V Manifest Destiny, North Carolina Journal of Law & Technology, (2010), P.15 )Unlike conventional warfare, cyber-warfare does not require military training for participants to actively engage in the act. n69 This relatively simple method of becoming a cyber-combatant n70 can become even more powerful when a nation such as Russia actively encourages its citizens to participate in cyber-attacks. n71 Therefore, the relative simplicity and frequency of cyber-attacks, combined with possible state encouragement of such actions, shows that preventing cyber-attacks can present extraordinary difficulties to United States national security forces. n72 With the new dangers of cyber-warfare, some argue that both the United States and international organizations such as NATO need to develop strategies to counter the potential effectiveness and lethality of cyber-warfare.

CURRENT INTERNATIONAL LAW IS NOT ADEQUATE ENOUGH TO DEAL WITH CYBER WARFARE

Leaven&Dodge 2010 (Tod&Christopher, civil litigation attorney, J.D. candidate, The United States Cyber Command: International Restrictions V Manifest Destiny, North Carolina Journal of Law & Technology, (2010), P.17-18)As one might expect, current international agreements that might be translated to cyber-warfare are presumed to concern relations among different nations, instead of individual actors. n86 Uncertainty still remains, therefore, in how the same law can be translated to individuals, acting independently from any government, who may engage in cyber-warfare. n87 The difference is significant because the ability of a nation to both properly [*18] prevent and retaliate against a cyber-attack depends on this determination. n88One example of how important this determination could be is that, at least according to the International Court of Justice, use of military force may not be applicable against an individual who engages in cyber-warfare, leaving the responsibilities instead to the laws of the state that has been, or believes itself to have been, attacked. n89 The problem with this approach to non-state actors is that the attacked state may not be able to use proper defense means against the attack. n90 This restriction exists because the ability of a state to respond is restricted by international agreement, often described as jus in bello. n91 Therefore, a response must be meticulously studied and prepared so as to not be too severe against the attacker, assuming that the attack is somehow properly traced to the correct source at all, in order for a response to be both effective and legal.











Targeted Killing AffCYBER ATTACKS ARE A HUGE THREAT TO THE UNITED STATES SECURITYLeaven&Dodge 2010 (Tod&Christopher, civil litigation attorney, J.D. candidate, The United States Cyber Command: International Restrictions V Manifest Destiny, North Carolina Journal of Law & Technology, (2010), P.17-18)

Cyber-attacks present difficulties to the United States that are unique and original that any currently proposed international treaty the United States enters will eventually become adverse to the interests of the United States at one point or another. To be sure, this may have been true for several past treaties, but nearly every aspect of cyber-warfare is more complex, versatile, and easily accessible to enemies of the United States than any other past or present threat to national security. Entering into a treaty at this point could tie the hands of United States security forces security, as opposed to preventing or stopping any threat. In fact, "the apparent ease with which a cyber attack may be carried out without [*27] attribution could make it impossible to fight back at all." n143 The mere activation of USCYBERCOM shows that the United States will not stay idle in cyber-warfare. Domestic improvements are simply more appealing to the United States in combating cyberwarfare than entering into an international treaty at this time. Going forward, USCYBERCOM should only be the beginning in creating U.S. cyber-security forces.


Targeted Killing AffELIMINATING ASSANGE WILL INCREASE THE SECURITY OF THE U.S. AND ITS ALLIES

REDUCING VULNERABILITIES IS CRITICAL TO CYBER SECURITY

McMillan, 2007 (Robert, Staff Writer, Is the U.S. at risk from cyberwarfare?, PCWorld,http://www.pcworld.com/article/137406/is_the_us_at_risk_from_cyberwarfare.html, accessed on July 14, 2011, np).

The United States faces many of the same dangers as Estonia. And with public utilities such as hydro-electric plants and nuclear power plants moving away from proprietary (and more secure) systems toward open-standards-based systems that use common Internet protocols such as TCP/IP to connect to one another, the list of potential targets is increasing. Attacks on U.S. systems have never been linked directly to state-sponsored cyberwarfare, but in 1999 Chinese hackers took down three U.S. government sites after NATO bombers mistakenly attacked the Chinese embassy in Belgrade. Though identifying adversaries in cyberwarfare is difficult, preparing for computer network attacks involves many of the same steps as preparing for other online threats, according to Gregory Garcia, assistant secretary for cybersecurity and telecommunications with the U.S. Department of Homeland Security. "For our purposes, we really need to focus on reducing our vulnerabilities so those attacks don't happen in the first place," he says.

MILITARY RESPONSES TO CYBER SECURITY THREATS IS VITAL TO SETTING INTERNET SECURITY PRECEDENT

Center for Strategic & International Studies, 2011 (Cybersecurity: Two YearsLater, http://csis.org/files/publication/110128_Lewis_CybersecurityTwoYearsLater_Web.pdf, accessed July 14, 2011, p. 10)

Any discussion of an expanded military role in defending civilian networks runs into powerful antibodies that grow out of civil liberty and privacy concerns. Historical precedent also limits the role of the military in civilian affairs. New “network neutrality” principles issued by the Federal Communications Commission may further complicate any policy decisions. We do not advocate changing the traditional separation that exists between military and civilian functions but believe that the administration and Congress should clarify our policies and laws to allow the military to fulfill its traditional role in protecting against foreign threats. Finding a way to do this in partnership with DHS and the private sector remains a fundamental challenge for cybersecurity policy. Making better use of military and intelligence capabilities against advanced foreign opponents, in partnership with DHS and the private sector, remains a fundamental challenge for cybersecurity policy.

http://csis.org/files/publication/110128_Lewis_CybersecurityTwoYearsLater_Web.pdf

http://www.pcworld.com/article/137406/is_the_us_at_risk_from_cyberwarfare.html

Targeted Killing AffINACTION REGARDING ASSANGE THREATENS THE U.S.’S MORAL AND LEGAL LEGITIMACY

Kuhner, 2010 (Jeffrey, Columnist & President @ Edmund Burke Institute, Assasinate Assange?, The Washington Times, http://www.washingtontimes.com/news/2010/dec/2/assassinate-assange/print/, accessed on July 14, 2011, np.)This is what he wanted all along. The 39-year-old Australian poses as a champion of government “transparency.” He likes to grandstand for the media as an idealist, a brave whistleblower who only wants the truth to come out against U.S. “imperialism.” The Swedish government has accused him of sexually assaulting two women. Mr. Assange is an anti-American radical who wants to see the United States defeated by its Islamic fascist enemies. His goal is to humiliate America on the world stage, to drain it of all moral and legal legitimacy - especially regarding the wars in Iraq and Afghanistan.

JULIAN ASSANGE SHOULD BE ELIMINATED, LIKE OTHER “HIGH VALUE” TARGETS

Kuhner, 2010 (Jeffrey, Columnist & President @ Edmund Burke Institute, Assasinate Assange?, The Washington Times, http://www.washingtontimes.com/news/2010/dec/2/assassinate-assange/print/, accessed on July 14, 2011, np.)This is the greatest diplomatic crisis since the late 1940s, when communist agents in the U.S. government provided atomic secrets to the Soviet Union. The world is witnessing the absurd, almost surreal spectacle of the American superpower standing helpless in the face of a lone hacker. Her diplomatic secrets are no longer safe; her allies and friends are being betrayed; and her cyber-enemies are free to roam with impunity. America is no longer feared or respected. Attorney General Eric H. Holder Jr. vows that he is looking into possible criminal charges against Mr. Assange. It is too late for tough talk. At this point, we are beyond indictments and courts. The damage has been done; people have died - and will die because of the actions of this puerile, self-absorbed narcissist. News reports say the WikiLeaks founder is hiding out in England. If that’s true, we should treat Mr. Assange the same way as other high-value terrorist targets.

