LT Toren G. Evers-Mushovic, JAGG, USN of Code 45 and LT Michael Hughes, JAGC, USN, have published an article:  Rules for When There Are No Rules:  Examining the Legality of Putting American Terrorists in the Crosshairs Abroad, 18 New Eng. J. Int’l & Comp. L. 157 (2012).

The article’s thesis is that targeted killing of U.S. citizens in military operations abroad should be controlled by “a rigorous approval process” and proposes “a series of rigorous Rules of Engagement (ROEs) and administrative procedures” to do so.

Here are the suggested ROE:

ROE 1: The Location of the Terrorist Precludes Capture

ROE 2: Terrorist Must Take Direct Part in Hostilities

Their first proposed administrative procedure is to reserve to the President the authority to place a U.S. citizen on the High Value Individual List.  Their second proposed administrative procedure is to require the Executive Branch to “conduct an independent and impartial investigation of all operations that target an American terrorist off a recognized battlefield to ensure that the ROEs and administrative procedures we have proposed are followed” due to the impracticability of “a pre-operation investigation and hearing through the courts.”  “Once the investigation is completed it should be delivered to both the U.S. Senate and House of Representatives Committees on Intelligence in order for Congress to wield its oversight powers.  Additionally, the findings of the investigations should be made public, with classified sections redacted as necessary.”  They suggest that “the investigatory body could be modeled after the Central Intelligence Agency’s Inspector General (IG), in which the IG is subject to Senate confirmation and can only be removed by the President.”

One Response to “Article on targeted killings of U.S. citizens”

  1. Teufelmutt says:

    In this paper, Lieutenants Evers-Mushovic and Hughes have captured many of the significant arguments and counterarguments for and against the extraterritorial targeted killing (TK) of U.S. citizens. However, their proposal is a solution in search of a problem and, presuming the problem were located, their proposed ROE and administrative procedures would be a post-bath Mogwai-shooting out little furry baby problems as it goes along.

    Harold Koh, AG Holder, and the president himself have already commented at length on the reasons supporting current targeted killing policy. As a commander in chief, it seems unlikely that the president would voluntarily divest himself of power he already has, under a regime which at a minimum has been implicitly ratified by the legislative branch (which, by extention, will likely spill over into the judicial branch as well, ala Youngstown Steel). Thus, while ROE as “commander’s tools” might be prudent in some cases, it remains far from certain that the commander would determine them necessary in every case. There is no historical basis within the Law of War which would warrant a pre-capture special status for an active combatant on the battlefield based on nationality alone.

    I would submit that the second proposed Rule of Engagement is likely already being applied. Based on publicly-released information, it appears that the persons targeted are DPH. By what standard that DPH is measured remains the focus of significant debate, but that debate is not won or lost based upon the unilateral ROE determinations of the president.

    Aside from my concerns regarding the ROE, it is the administrative requirements proposed in this paper which would gi ve rise to endless challenges, some of which may even be legitimate. As an initial matter, it seems imprudent to permanently reserve to POTUS the targeting authority. Should he elect to do so, the president may reserve that power. However, the authority to kill (including the authority to kill U.S. citizens on the battlefield when they haven’t been identified as such-a power that every commander already has) is often delegated. There is little (if any) evidence to suggest that witholding that authority will improve the process by which said authority is exercised.

    I respectfully submit that the investigative requirement is both impracticable and futile. Apart from a standard battle damage assessment, the requirement to investigate these strikes would doubtless be plagued by problems associated with access to strike sites, as well as diplomatic and jurisdictional issues, and in my view would amount to little more than a regurgitation of the facts on which the president relied in making the strike decision in the first instance. Even if completed, and even if it contained valuable information, hte likelihood approaches certainty that such materials would be so heavily redacted as to be useless in the public domain, a problem which renders moot the central benefit Lieutenants Evers-Mushovic and Hughes advance in support of their plan: the power of the ballot box. Rather, the likely product of such an investigation would, on reaching the voting public, be so heavily diluted as to make it equally useful to proponents and opponents of TK.

    Finally, I’d note that a post-strike investigation review wouldn’t do much to provide relief to the target himself. A plan that stresses transparency in post-strike measures seems to work an absurd result where, as here, the public’s interest in knowing very little about how a strike came to pass is superior than the target’s fundamental interest in life.

    This policy proposal gives rise to numerous questions about its implementation. What if the president were later to desire (or need) to delegate such authority? Would implementation of this plan over time set a precedent restricting his Article 2 authority? Does this practice constitute “state practice” within the meaning of international law and, if so, what effect does the practice have on customary international law? What about judicial challenges (domestic and international)? How much statutory law would be required to implement this policy? What if the information released is insufficient to accomplish the transparency objectives of this proposal? We made it transparent-now why won’t Mary Ellen O’Connell agree that TK is legal?

    This is a great paper for its treatment of a topical discussion, but it’s also a bad policy proposal that won’t satisfy critics, but will tie our hands.